IRLF 


JK 

1533 
F5 
1911 
MAIN 


SB    Efl 


OF   JUDGES 


By 

IORRISON 


READ    BEFORE    THE    CHIT    CHAT    CLUB 
OF   SAN    FRANCISCO 

Jri.v   !.-»,   1911 


THE 


RECALL   OF 


AN  ESSAY  By 

A.  F.  MORRISON 


READ    BEFORE   THE   CHIT   CHAT    CLUB 

OF  SAN    FRANCISCO 

JULY  10,  1911 


THE 

RECALL   OF   JUDGES 


AN  ESSAY  By 

A.  F.  MORRISON 


READ    BEFORE    THE    CHIT    CHAT    CLUB 

OF   SAN    FRANCISCO 

JULY  10,  1911 


INTRODUCTORY  .a 

Analysis   of   Proposed   Senate   Constitutional  Amendment 

No.  23  /V/\ 

The  last  session  of  the  California  Legislature  has 
submitted  to  the  people  of  this  State,  for  adoption, 
an  amendment  to  their  Constitution  providing  that 
every  elective  public  officer  of  the  State  may  be  re- 
called, or  removed  from  the  office  to  which  he  has  been 
elected,  and  that  his  successor  may  be  simultaneously 
elected,  by  a  majority  vote  of  the  electors  entitled  to 
vote,  and  who  actually  do  vote,  at  an  election  called 
for  that  purpose. 

The  procedure  provided  in  this  amendment  for  re- 
calling the  officer  and  electing  his  successor,  is  sub- 
stantially as  follows: 

A  petition  signed  by  a  certain  number  of  the 
electors  who  are  entitled  to  vote  for  a  successor  of 
the  officer  sought  to  be  removed  must  be  addressed  to 
the  Secretary  of  State  and  be  filed  with  the  Clerk  or 
Registrar  of  Voters  of  the  county  or  city  and  county 
in  which  the  petition  is  circulated.  But  no  petition 
can  be  filed  against  an  officer  unless  he  has  held  office 
for  six  months;  except  that  in  the  case  of  members  of 
the  Legislature  it  may  be  filed  after  five  days  from 
the  convening  or  organizing  of  the  Legislature. 

The  petition  must  contain  a  general  statement  of  the 
grounds  on  which  the  removal  is  sought.  This  state- 
ment, however,  is  intended  solely  to  inform  the  voters 
of  the  grounds  on  which  the  proposal  to  recall  is 
founded;  and  no  matter  how  flimsy  it  may  be,  its 
sufficiency  is  not  open  to  review. 


545416 


In  case  the  removal  of  a  local  officer  is  sought,  the 
petition  must  be  signed  by  a  number  of  electors  equal 
to  twelve  per  cent  of  the  entire  vote  cast  at  the  last 
preceding  election  for  all  candidates  for  the  office 
which  the  incumbent  occupies.  In  case  the  officer 
sought  to  be  removed  is  a  state  officer  who  is  elected 
in  the  state  at  large,  or  in  any  political  subdivision 
of  the  state,  the  petition  must  be  signed  by  twenty- 
five  per  cent  of  such  electors. 

When  such  a  petition,  properly  certified,  is  pre- 
sented to  the  Secretary  of  State,  he  must  forthwith 
submit  it  to  the  Governor,  who  must  thereupon  fix  a 
date  for  holding  the  election,  not  less  than  sixty  days 
nor  more  than  eighty  days  from  the  date  of  the 
certificate  of  the  Secretary  of  State. 

The  election  must  then  be  held  for  the  removal  of 
the  incumbent  officer  and  for  the  election  of  his  suc- 
cessor. Any  person  may  become  a  candidate  for  the 
succession  to  the  office  in  case  of  the  removal  of  the 
incumbent,  by  filing  a  nominating  petition  signed  by 
electors  equal  in  number  to  at  least  one  per  cent  of 
the  total  number  of  votes  cast  at  the  last  preceding 
election  for  all  candidates  for  that  particular  office. 

The  recall  ballot  shall  submit  to  the  voters  the 

question :  Shall (naming  the  incumbent) 

be  recalled  from  the  office  of (giving 

the  title  of  the  office). 

There  shall  be  printed  on  the  ballot,  in  not  more 
than  two  hundred  words,  the  reasons,  as  set  forth  in 
the  petition,  for  demanding  the  recall.  The  incum- 
bent has  the  privilege,  either  of  resigning,  or  sub- 
mitting his  name  for  recall  on  the  s;mi<>  ballot  which 
contains  the  names  of  the  new  candidates  who  seek 
his  office.  If  he  concludes  to  submit  the  question  of 
his  removal  to  a  vote  he  has  the  privilege  of  having 


printed  on  the  ballot  his  justification  of  his  course  in 
office,  in  not  more  than  three  hundred  words.  If  a 
majority  of  those  voting  at  the  election  vote  "No"  on 
the  question  of  removal,  the  incumbent  retains  his 
office.  But  if  a  majority  vote  "Yes"  he  loses  his  office ; 
and  the  votes  for  the  several  candidates  must  be  can- 
vassed and  the  candidate  who  shall  have  received  the 
highest  number  of  votes  shall  be  declared  elected  to 
fill  the  office  for  the  remainder  of  the  term. 

It  will  be  noticed  that  this  provision  applies,  as  was 
intended,  to  judges  as  well  as  to  other  officers ;  and 
it  will  be  the  purpose  of  this  essay  to  consider  the 
policy  of  applying  such  an  institution  to  the  judiciary. 

The  Recall  is  a  Novel  Idea  in  Republican  Government. 

The  institution  of  the  recall  as  applied  to  an  elective 
officer,  during  his  term,  is  practically  new  in  republi- 
can government.  There  have  been  only  a  few  instances 
where  it  has  been  formulated. 

Article  V  of  the  Articles  of  Confederation  con- 
tained this  provision : 

"For  the  more  convenient  management  of  the  general  interest 
of  the  United  States,  delegates  shall  be  annually  appointed  in 
such  manner  as  the  Legislature  of  each  State  shall  direct,  to 
meet  in  Congress  on  the  first  Monday  in  November,  in  every 
year,  with  a  power  reserved  to  each  State  to  recall  its  delegates, 
or  any  of  them,  at  any  time  within  the  year,  and  to  send  others 
in  their  stead,  for  the  remainder  of  the  year." 

We  find  no  trace  of  this  provision  in  the  Constitu- 
tion which  was  adopted  about  ten  years  later,  nor  in 
any  of  the  numerous  state  constitutions  which  have 
been  adopted  from  time  to  time,  except  the  constitu- 
tional amendment  adopted  in  Oregon  in  1908.  The 
Oregon  amendment  is  the  prototype  of  that  of  Cali- 
fornia, and  applies  to  all  elective  officers,  including 
judges. 


A  like  provision  also  exists  in  the  new  Constitution 
of  Arizona,  which,  however,  has  not  yet  become  effect- 
ive. 

In  municipal  affairs,  however,  it  has  made  con- 
siderable progress,  especially  in  this  State.  The  first 
record  of  its  adoption  is  in  Los  Angeles  in  1903 ;  and 
since  that  time,  it  has  been  adopted  in  a  large  number 
of  municipalities  of  this  State  and  in  a  number  of 
other  Western  and  Pacific  States. 

We  are  safe  therefore  in  saying,  that  this  idea 
of  recalling  officers,  and  especially  judges,  as  a 
political  institution  in  republican  government,  is  a 
novel  idea ;  and  it  may  be  well  to  briefly  consider  the 
motive  for  its  origin,  and  the  supposed  demand  for  it. 

Motive  for  the  Recall 

While  representative  government,  in  the  abstract, 
is  ideal,  it  has  been  found,  after  more  than  a  century 
of  trial,  to  disappoint  many  of  the  hopes  of  its  advo- 
cates and  to  fail  in  the  accomplishment  of  many  of 
the  benefits  which  it  was  thought  would  result  from  its 
adoption.  Our  state  legislatures  have  gotten  into 
such  bad  repute  with  the  people,  that  latterly  the  most 
pronounced  reforms  in  state  constitutions,  have  pro- 
vided for  curtailing  the  length  of  legislative  sessions 
and  narrowing  the  powers  of  legislative  action.  The 
idea  seemed  to  be  that  the  less  legislation  the  less 
harm. 

The  same  may  be  said  of  the  municipal  legislatures. 
The  modern  charters  breathe  mostly  of  distrust  of  the 
municipal  legislature.  And,  at  the  same  time,  with  all 
this  distrust  and  caution  in  the  fundamental  laws, 
nothing  has  been  more  pronounced  than  the  continued 
inability  of  the  people  to  select  members  of  the  state 
and  municipal  legislatures  for  whom  they  can  have 


respect ;  and  in  many  cases  the  work  of  legislation  has 
fallen  into  the  hands  of  men  who  are  utterly  unfitted 
for  it  by  capacity  or  education;  and,  often,  also,  into 
the  hands  of  men  who  may  be  called  public  free- 
booters. In  former  times  many  men  of  great  attain- 
ments and  high  character  sought  the  office  of  state  or 
municipal  legislator,  as  a  stepping  stone  toward  the 
satisfaction  of  higher  ambitions  or  because  they  were 
imbued  with  a  patriotic  desire  to  benefit  their  state  or 
community.  Of  late  years,  in  most  states  in  this 
country,  it  has  been  very  difficult  for  such  men  to  be 
elected,  because,  as  a  general  rule,  they  have  been 
required  to  form  an  alliance  with  some  political  ma- 
chine or  boss  in  order  to  get  elected ;  and  this  meant 
to  surrender  their  independence  to  such  an  extent  that 
the  highest  type  of  men  would  not  accept  the  con- 
ditions. Furthermore,  if  the  position  was  sought  by 
a  man  of  a  practical  turn  of  mind,  who  might  take  the 
view  that  politics  is  a  system  of  compromises  with  evil ; 
and  if  he  were  willing  to  make  some  sacrifices,  for  the 
good  he  could  do  when  elected,  he  would,  nevertheless, 
when  elected,  generally  find  himself  impotent  to  do 
anything  without  the  aid  of  his  fellow  legislators  who 
would  often  be  mere  chattels  of  some  extra  legal 
power  or  boss,  who  pulled  the  strings  and  who  per- 
mitted or  forbade  all  legislation,  according  as  it  was 
or  was  not  satisfactory  to  this  extra  legal  power.  He 
often  found  his  fellows  to  be  men  who  sought  the 
office  for  the  small  pay  it  afforded  them  and  the 
opportunities  to  get  bribes  for  themselves,  or  maybe 
small  jobs  and  pickings  for  themselves  or  their  rela- 
tives and  friends. 

It  has  finally  come  to  pass,  that  a  man  is  likely  to 
lose  his  good  character  if  he  becomes  a  member  of  the 
legislature  or  of  a  municipal  council;  and  what  was 


once  a  position  of  honor  has  almost  got  to  be  a  matter 
of  contempt.  Yet  the  people  have  gone  on  year  after 
year  electing  legislatures  and  municipal  councils  of 
the  same  character.  Reformation  seemed  beyond  their 
power.  When  they  lost  confidence  in  one  party  and 
turned  it  out  and  put  another  in,  it  was  generally 
found  that  they  had  changed  one  bad  lot  for  another. 
It  seemed  beyond  the  power  of  the  people  to  elect 
servants  who  would  keep  their  pledges  and  be  true  to 
the  interests  of  the  people.  The  men  elected  to  office 
generally  turned  out  to  be  vicious  demangogues  who 
sought  to  gain  the  applause  of  the  people  by  reck- 
lessly plundering,  for  the  benefit  of  the  people,  the 
big  corporations  who  had  business  to  transact  with  the 
public,  or  to  enrich  themselves  by  blackmailing  these 
same  corporations,  or  selling  out  to  them  when  the* 
temptation  was  made  great  enough. 

These  conditions  became  so  bad  that  many  patriotic 
men  began  to  despair  for  republican  or  democratic 
government.  It  actually  seemed  as  if  the  people  were 
incompetent  to  manage  their  own  affairs,  and  that 
our  institutions  were  in  danger  of  breaking  down. 
It  seemed  to  many  that  we  were  fast  drifting  either  to 
anarchy  on  the  one  hand  or  to  a  despotism  on  the 
other.  At  any  rate,  one  thing  was  clear :  The  repre- 
sentative system  had,  both  in  state  and  municipal 
affairs,  shown,  in  actual  practice,  elements  of  weak- 
ness which  seemed,  in  our  present  state  of  political 
development,  to  make  it  unworkable  for  the  produc- 
tion of  efficient  and  honest  government.  Within  little 
more  than  a  decade  we  have  seen  the  continuous 
growth  of  great  business  corporations,  which  have  ac- 
quired a  practical  monopoly  of  some  lines  of  industry, 
and  whose  annual  budgets  are  larger  than  those  of 
some  respectable  sized  states  and  nations.  They  wield 


the  tremendous  power  which  necessarily  conies  with 
the  employment  of  many  millions  of  capital  and  many 
thousands  of  men.  They  are  disciplined  and  managed 
by  the  best  ability  that  money  and  influence  can  secure, 
and  they  have  virtually  become  imperil  in  imperio. 
These  great  corporations  have  often  been  managed 
without  that  sense  of  personal  responsibility  or  con- 
science which  would  govern  an  individual  acting  for 
himself.  These  huge  organizations,  in  the  course 
of  their  business  affairs,  necessarily  come  in  contact 
with  the  public,  not  only  with  the  state  and  the 
municipality,  but  with  the  people  in  their  unorgan- 
ized capacity,  because  their  business  is  in  supplying 
the  needs  of  the  public.  Sometimes,  through  their 
great  power  and  influence,  they  have  gotten  advan- 
tages in  dealing  with  the  public  which  an  individual 
would  find  it  difficult  to  obtain.  Sometimes  these  ad- 
vantages have  been  improper  and  harmful  to  the 
public,  although  sometimes  they  have  been  perfectly 
proper.  Now,  there  are  many  people  in  every  com- 
munity (and  I  am  speaking  only  of  honest  and  sin- 
cere people,  and  not  of  the  dishonest  and  insincere) 
who  cannot  see  any  advantage  conceded  by  the  pub- 
lic to  a  big  corporation  without  believing  it  to  be 
crooked,  nor  can  they  see  a  controversy  of  any  kind 
between  a  big  corporation  and  an  individual,  decided 
in  favor  of  the  stronger  party,  without  believing  it 
to  be  a  crooked  decision.  The  public  at  large  seem 
often  to  partake  of  this  quality  of  mind.  We  can 
all  recall  cases  where  the  public  will  apparently 
sanction  a  dishonest  or  ruthless  act  against  a  big  cor- 
poration, the  like  of  which  probably  a  majority  of 
the  individuals  would  not  stand  for  in  private  life, 
or  at  least  they  would  not  sanction  the  like  as  be- 
tween man  and  man.  There  are  many  enterprises 


which  could  not  be  carried  on  without  great  capital, 
and  it  has  been  quite  common  for  new  communities 
to  offer  big  inducements  to  capitalists  or  corporations 
to  invest  their  wealth  in  some  such  enterprise  which 
will  benefit  the  community.  Franchises,  bonds  and 
other  inducements  are  freely — sometimes  recklessly- 
voted.  Perhaps  the  undertaking  may  be  premature, 
or  "ahead  of  the  times,"  as  they  say,  but  the  big  in- 
ducements of  future  gain  attract  the  present  poor  in- 
vestment. Everything  is  lovely  as  far  as  the  public 
is  concerned,  while  the  capitalist  is  not  making 
money,  but  if  the  community  grows  up  to  the  sanguine 
expectations  of  the  people  who  voted  those  induce- 
ments to  the  capitalist,  and  his  concession  becomes 
very  profitable,  it  is  quite  common  for  the  people, 
in  their  collective  capacity,  led  on  by  demagogues,  to 
try  to  take  it  back  or  nullify  it.  The  history  of  this 
country  contains  many  cases  of  just  such  incidents. 
Even  states  have  been  among  the  worst  repudiators, 
and  the  nation  itself  has  narrowly  escaped  the  dis- 
grace on  several  occasions.  Unfortunately  the  men  in 
control  of  the  tremendous  power  of  these  great  cor- 
porations have  often,  from  one  motive  or  another, 
yielded  to  the  temptation  to  use  their  great  power 
politically,  and  when  this  power,  with  the  organiza- 
tion and  skill  behind  it,  came  in  conflict  with  the 
unorganized  masses  of  the  public,  organization  and 
skill  won. 

The  people  have  seen  men  elected  to  their  legis- 
latures and  other  offices  because  of  their  supposed 
friendliness  to  some  big  corporation,  and  they  have 
seen  legislatures,  state  and  municipal,  enact  laws  and 
vote  privileges  to  corporations  which  they  believed 
would  not  be  so  voted  except  for  the  subserviency 
to  the  corporations  of  those  whom  the  people  elected 

10 


to  office.  And  too  often  the  people  have  been  imbued 
with  the  well-founded  belief  that  some  of  those  valu- 
able privileges  have  been  corruptly  sold  by  their 
chosen  representatives.  These  things  have  made  the 
people  extremely  jealous  and  suspicious  of  every  act 
of  their  representatives,  where  one  of  these  big  cor- 
porations is  concerned,  and  the  low  character  of  many 
of  the  representatives  whom  the  people  themselves 
have  elected  to  office  has  intensified  this  jealousy  and 
suspicion. 

Added  to  all  this  there  has  grown  up  within  the 
last  ten  or  fifteen  years  a  school  of  journalists  called 
"yellow  journalism/'  and  a  school  of  magazine  writers 
called  "muckrakers — often  Socialists  and  Anarchists, 
sometimes  in  the  open  and  sometimes  in  disguise — 
who  have  lost  no  occasion,  and  have  often  made  the 
occasion,  to  undermine  the  respect  and  confidence  of 
the  masses  of  the  people  for  the  constitution  and  in- 
stitutions of  our  country,  and  to  stimulate  and  inflame 
their  jealousy  and  suspicion  against  their  representa- 
tives in  office,  and  the  corporations  doing  "big  busi- 
ness." The  term  "big  business"  has  gotten  to  be  al- 
most as  much  an  expression  of  contempt  as  the  words 
"member  of  the  legislature,"  "councilman"  or  "super- 
visor." 

It  cannot  be  doubted  the  "yellow  journalists"  and 
the  "muckrakers"  have  done  some  good  in  exposing 
nefarious  work,  and  there  are  probably  honest  and 
sincere  men  among  them.  But  it  is  undoubtedly  true 
that  the  most  upright  officials  have  been  wantonly 
and  cruelly  maligned  without  any  higher  motive  than 
to  create  discontent  with  the  present  order  of  things, 
or  to  make  a  sensation,  which  will  interest  the  public 
and  sell  the  paper  or  magazine.  One  great  weakness 
of  the  public  is  its  delight  in  seeing  character  des- 

11 


troyed,  and  people  in  high  places  traduced;  though, 
of  course,  it  is  much  more  satisfying  if  the  abuse  has 
some  foundation  than  if  it  has  not.  The  newspaper 
men  have  learned  this  lesson  well,  for  whenever  you 
remonstrate  with  one  of  them  for  the  bad  character 
of  their  publications,  the  invariable  answer  is  that 
they  know  what  the  public  wants,  and  it  is  their 
business  to  try  to  supply  it.  But  when  all  is  said, 
and  in  spite  of  its  own  failings,  there  is  no  doubt 
but  that  the  public  has  often  been  badly  treated  by 
its  chosen  representatives.  In  spite  of  the  apparent 
complacency  with  which  the  public,  in  election  after 
election,  makes  the  same  old  mistakes  and  shows  the 
same  old  incompetency  in  electing  its  officials,  it  be- 
lieves that  it  is  entitled  to  better  treatment  than  it 
has  received,  and  many  people  have  worked  them- 
selves into  the  belief  that  the  trouble  is  not  so  much 
with  themselves  as  with  the  system  under  which  such 
things  happen.  The  temptation  to  try  something  new 
is  very  strong.  At  any  rate,  during  the  last  ten  years 
the  public  has  been  aroused  to  take  a  greater  and  more 
earnest  interest  than  for  a  long  time  before  in  pro- 
viding checks  on  its  representatives,  and  for  taking 
into  its  own  hands  a  larger  share  in  the  management 
of  its  own  affairs.  The  reforms  in  this  line  have 
been  principally  in  adopting  the  institutions  for  direct 
legislation  by  the  people,  known  as  the  initiative  and 
referendum,  and  also  the  recall. 

The    Initiative,    Referendum    and    Recall    Explained    and 
Distinguished  Generally. 

The  initiative  and  the  referendum  have  been  largely 
borrowed  from  the  Swiss  Republic,  but  the  recall  is 
of  native  growth.  The  recall  has  no  necessary  con- 
nection with  legislation,  as  have  the  initiative  and  ref- 

12 


erendum.  The  initiative  is  the  power  of  the  people, 
at  large,  to  initiate  legislation  and  to  legislate.  It  is 
direct  legislation  by  popular  vote,  without  reference 
to  the  legislature.  The  referendum  requires  the  act 
of  the  legislature  to  be  submitted  to  a  vote  of  the 
people  for  approval  or  rejection.  The  recall  can  be 
applied  in  any  kind  of  government,  for  the  purpose 
of  removing  officials  who  do  not  comply  with  the  pop- 
ular will,  and  electing  others  in  their  place.  All  three 
reforms  are  the  essence  of  pure  democracy. 

Strong  and  Weak   Points   of   Initiative,   Referendum  and 
Recall. 

The  strong  and  weak  points  of  each  of  these  in- 
stitutions are  very  pronounced,  depending  upon  the 
end  desired.  It  has  generally  been  thought  in  the 
past,  by  the  best  thinkers,  that  direct  legislation  could 
be  successful  only  in  small  communities  like  the  Swiss 
Cantons  or  the  democracies  of  ancient  times,  em- 
bracing a  small  territory,  where  practically  the  whole 
people  could  meet  in  the  forum  or  market  place  and 
personally  participate  in  the  matters  of  public  con- 
cern. But  in  our  time,  with  a  highly  intelligent  peo- 
ple, and  the  impediments  of  distance  and  time  largely 
eliminated  by  the  press,  the  post  office  and  the  inven- 
tions of  modern  science,  the  referendum  has  been 
found  to  work  measurably  well  over  large  areas.  Many 
think  that  the  initiative  is  also  likely  to  prove  an  ef- 
ficient instrument  of  legislation,  but  it  can  hardly  be 
said  to  have  passed  the  experimental  stage.  In  a  gen- 
eral way  it  may  be  said  that,  theoretically,  at  least, 
these  reforms  cannot  make  for  efficiency  in  either 
national  or  state  governments,  and  would  be  abso- 
lutely paralyzing  and  demoralizing  in  times  of  crises, 
or  in  maintaining  a  dignified  or  stable  policy  in  deal- 

13 


ing  with  other  nations.  Wherever  the  work  of  the 
specially  trained  expert,  in  government,  is  essential 
to  efficiency,  these  reforms  are  not  likely  to  have  a 
salutary  effect  either  on  legislation  or  administration. 
On  the  other  hand,  by  their  tendency  to  educate  and 
develop  the  whole  people,  it  seems  probable  that  the 
initiative  and  referendum  might  lead  to  a  higher  pol- 
itical development,  if  exercised  in  the  hands  of  a  peo- 
ple possessed  of  a  strong  sense  of  justice,  and  who 
will  be  considerate  of  the  rights  of  the  minority.  But 
it  will  be  seen  at  once  that  these  general  considera- 
tions suggest  very  deep  questions  not  only  of  policy, 
but  of  psychology. 

In  municipal  matters,  which  are,  and  should  be, 
largely  conducted  from  the  point  of  view  of  a  busi- 
ness organization,  and  where  the  weakening  effect  on 
the  administration,  even-  if  harmful  in  some  respects, 
would  not  be  far-reaching  in  its  results,  it  would  seem 
that  the  initiative,  referendum  and  even  the  recall, 
might  prove  a  success. 

RECALL  OF  JUDGES. 

But  our  purpose  is  to  deal  specifically  with  the  re- 
call, and  with  only  one  phase  of  that  problem,  namely, 
the  recall  of  judges. 

What  has  been  said  has  been  largely  for  the  pur- 
pose of  developing  the  atmosphere  surrounding  the 
problem,  and  to  prepare  the  way  for  its  better  con- 
sideration. 

Notwithstanding  the  vital  importance  of  this  al- 
leged reform,  one  of  the  first  things  which  impresses 
the  investigator  is  the  meagreness  of  the  information 
on  the  subject  among  the  public  men  as  well  as  the 
ordinary  citizens.  There  is  scarcely  any  literature 
worth  considering,  and  what  has  been  written  is  mostly 

14 


immature  and  a  priori  reasoning,  and  consists  almost 
entirely  of  impressions  and  opinions.  Aside  from  the 
speeches  in  Congress,  the  most  ambitious  effort  which 
I  have  been  able  to  find  is  an  essay  by  Albert  Fink  in 
the  May  (1911)  number  of  the  North  American  Re- 
view, in  which  his  principal  purpose,  in  opposition  to 
the  recall,  is  to  prove  that  it  is  inconsistent  with  a 
republican  form  of  government,  and  therefore  pro- 
hibited by  the  Federal  Constitution.  This  argument 
is  certainly  very  weak,  for  it  makes  republican  govern- 
ment synonymous  with  representative  government; 
but  there  is  certainly  nothing  in  the  recall  which  is  in- 
consistent with  representative  government,  however 
much  representative  government  might  be  weakened 
by  it. 

Objections  to  the  Recall  of  Judges. 

To  my  mind  the  greatest  danger  in  this  reform  lies 
in  the  fact  that  it  is  an  ill-considered  assault  upon  the 
most  delicate  part  of  our  governmental  machinery,  and 
tends  to  destroy  the  independence  and  courage  of  the 
judiciary,  in  whom  the  quality  of  independence  and 
fearlessness  has  been  heretofore  considered  of  the  most 
vital  necessity  in  protecting  the  liberty  and  security  of 
a  free  people.  It  is  taking  a  leap  in  the  dark,  and 
tempting  fate,  when  nearly  all  of  the  arguments  and 
analogous  precedents  of  history  show  that  the  step  is 
an  unwise  one. 

Arguments   for   the    Recall   of    Legislative   and   Adminis- 
trative  Officers  Are  Not  Applicable  to  Judges. 

There  can  be  no  doubt  but  that  the  movement  for 
the  recall,  generally — including  the  recall  of  judges — 
is  advocated  by  many  excellent  people.  They  say,  with 
much  plausibility,  that  a  public  servant  who  does  not 

15 


carry  out  the  will  of  the  people,  who  elected  him, 
should  be  discharged,  just  as  a  private  servant  would 
be  discharged,  who  is  disloyal  to  his  employer.  Of 
course  the  word  "people,"  as  used  in  this  connection, 
means  the  "majority"  or  "group"  which  elected  the 
public  servant,  for  he  could  not  be  expected  to  carry 
out  the  will  of  the  minority  or  group  who  did  not  elect 
him,  although  such  minority  or  group  would  form  a 
part  of  the  "people."  There  is  much  force  in  this  argu- 
ment, when  applied  to  the  legislative  or  administra- 
tive officer,  for  he  is  elected  for  the  very  purpose  of 
carrying  out  and  making  effective  the  policy  and 
wishes  of  the  majority  or  group  which  elected  him.  In 
a  democracy,  the  majority  should  rule,  and  it  has  a 
right  to  have  its  policy  and  wishes  put  into  operation 
by  the  servants  which  it  elects.  It  elects  the  servant 
for  that  very  purpose,  and  if  the  servant  fails  to  ef- 
fectuate that  purpose  to  the  best  of  his  ability,  he  is 
faithless  to  his  trust. 

But  a  judge  is  not  elected  to  carry  out  any  policy  of 
any  party,  or  the  wishes  of  any-  majority  or  group. 
He  is  not,  in  any  sense  the  servant  of  any  majority 
or  group.  He  is  the  servant  of  the  whole  people — of 
every  individual  in  the  community  as  well  as  the  whole 
mass.  He  is  under  just  as  great  and  sacred  obliga- 
tions of  duty  to  the  poorest  outcast  as  to  the  ruling 
majority  which  elected  him.  It  may  become  his  duty 
to  thwart  the  will  of  that  majority  when  it  attempts 
to  override  the  constitutional  rights  of  the  minority 
or  of  the  individual.  It  may  be  his  duty  to  protect 
the  poor  outcast  or  the  unpopular  individual,  or  the 
victim  of  race  or  religious  or  class  prejudice,  against 
the  prejudice  or  fury  of  the  majority  which  may  seek 
his  life  or  liberty.  The  judge  should  not  be  a  partisan. 
He  is  elected  to  interpret  and  decide  the  law,  as  it  is 

16 


written  in  the  constitution  or  statutes,  or  if  the  case 
in  hand  is  not  covered  by  constitution  or  statute,  then 
as  declared  by  the  courts  of  last  resort,  until  such 
time  as  that  declaration  is  changed  by  constitution  or 
statute.  The  courts,  therefore,  must  necessarily  be 
conservative.  It  is  not  their  function  to  initiate  legis- 
lation or  change  laws  to  suit  the  ideas  or  whims  of  any 
party  or  majority  or  group,  but  to  declare  what  the 
law  is  without  fear  or  favor.  This  very  conservatism, 
so  essential  and  necessary  to  the  courts,  has  aroused 
the  bitterest  antipathy  of  many  who  claim  to  be  radi- 
cal reformers..  The  judge  tries  to  find  out  what  the 
people  or  the  legislature  meant  when  they  enacted  a 
constitutional  provision  or  a  statute,  by  an  honest  in- 
terpretation of  the  meaning  of  the  language  used, 
whereas  these  reformers  insist  that  the  judge  shall 
declare  the  law  to  be  what  the  majority  of  the  people, 
for  the  time  being,  thinks  it  ought  to  be.  The  reform- 
ers inveigh  against  judicial  legislation,  but  more  judi- 
cial legislation,  and  much  more  erratic  judicial  legis- 
lation, is  the  very  essence  of  the  proposed  reform. 

Bad  Motives  of  Many  Advocates  of  the  Recall  of  Judges. 
But  in  addition  to  those  good  people  who  advocate 
the  recall  of  the  judges,  it  is  most  enthusiastically  ad- 
vocated by  all  of  those  elements,  which,  for  their  own 
selfish  ends,  would  like  to  see  the  judiciary  placed  in 
a  position  where  it  could  be  intimidated  and  made  sub- 
servient to  their  own  purposes,  and  also  by  all  those 
who  would  like  to  see  the  destruction  of  our  present 
institutions,  and  who  believe  that  out  of  the  confusion, 
disorder  and  anarchy,  which  may  result,  their  own 
ideals  and  wild  schemes  of  legislation,  or  possible  revo- 
lution or  socialism,  may  have  a  chance  to  prevail. 


17 


The   Recall  of  Judges  Historically  Considered. 

My  purpose  is  to  treat  this  subject  somewhat  his- 
torically, but,  of  course,  in  the  limits  of  a  paper  of 
this  kind,  it  is  impossible  to  give  more  than  the  merest 
sketch. 

In  considering  the  arguments  for  and  against  the  re- 
call we  must  start  out  with  the  fundamental  assump- 
tion that  government  of  some  kind  is  a  necessity. 

I  believe  Judge  Baldwin  (now  Governor  of  Con- 
necticut) is  correct  when  he  said:  (American  Judi- 
ciary, p.  98.) 

"Government  is  a  device  for  applying  the  power  of  all  to 
secure  the  rights  of  each.  Any  government  is  good  in  which 
they  are  thus  effectually  secured.  That  government  is  best  in 
which  they  are  so  secured  with  the  least  show  of  force.  It  is 
not  too  much  to  say  that  this  result  has  been  worked  out  in 
practice  most  effectually  by  the  American  judiciary  through 
its  mode  of  enforcing  written  constitutions." 

The  Fundamental  Rights  of  the  Citizen. 

The  Declaration  of  Independence  holds  it  to  be  a 
self  evident  truth  that  men  "are  endowed  by  their 
Creator  with  certain  inalienable  rights;  that  among 
these  are  life,  liberty  and  the  pursuit  of  happiness; 
that,  to  secure  these  rights,  governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  con- 
sent of  the  governed."  I  assume  also  that  the  instinct 
of  property  implanted  in  our  race  indicates  that  the 
right  of  property  is  a  natural  and  fundamental  right, 
just  as  are  the  rights  of  life,  liberty  and  the  pursuit 
of  happiness,  and  that  the  right  of  property  is  also 
one  of  the  rights  which  governments  are  instituted, 
among  men,  to  secure. 

These  rights  do  not  emanate  from  the  state,  al- 
though, by  force,  it  may  take  them  away.  The  citizen 
has  a  natural  right  to  his  life,  of  which  the  assassin 

18 


has  no  right  to  deprive  him ;  he  has  a  natural  right  to 
his  property,  of  which  the  robber  has  no  right  to  de- 
prive him.  It  is  no  less  wrong  for  the  state  to  deprive 
the  citizen  of  those  rights  than  for  the  assassin  or  the 
robber  to  do  it.  It  makes  no  difference  to  the  citizen 
whether  his  rights  are  trampled  on  by  a  monarch  or 
by  a  majority  of  his  fellow  citizens.  It  is,  therefore, 
the  duty  of  the  state  to  protect  the  citizen  in  the  en- 
joyment of  these  fundamental  rights,  subject  to  such 
reasonable  restrictions  as  will  secure  the  equal  en- 
joyment of  the  same  rights  in  others.  Civilization, 
as  we  understand  it,  cannot  exist  without  the  reason- 
able and  proper  enjoyment  of  these  rights  among  men, 
and  their  protection  by  the  state. 

The  Necessity  for  Constitutions  and  Charters,  or  Funda- 
mental Law. 

I  low  can  those  fundamental  rights  best  be  secured 
and  protected?  We  have  a  country  stretching  from 
ocean  to  ocean,  and  from  the  tropical  South  to  the 
frozen  North.  In  this  vast  territory  we  have  a  diver- 
sity of  climate,  topography,  soil  and  resources  which 
is  almost  boundless.  We  have  a  population  of  upwards 
of  90,000,000  of  people,  whose  industries  and  wants 
are  as  varied  as  our  climate,  topography,  soil  and  re- 
sources. Different  communities  have  different  customs, 
methods  of  thought,  and  habits  of  life ;  they  have  even 
a  diversity  of  traditions  and  ideals  which  the  unifying 
effect  of  our  institutions  have  not  been  able  to  obliter- 
ate. It  would  seem  impossible  for  one  central  govern- 
ment to  wisely  or  efficiently  legislate  for,  or  govern, 
such  a  people,  in  their  local  or  domestic  affairs.  We 
know  that  the  different  communities  are  passionately 
attached  to  the  principle  of  local  self-government,  and 
that  local  laws  which  are  popular  in  one  community 

19 


would  not  be  tolerated  and  could  not  be  enforced 
in  another.  Our  vast  country  could  never  have  been 
held  together  as  a  united  nation  were  it  not  for  the 
prevalence  of  this  principle  of  local  self-government, 
which  permits  different  states  and  different  com- 
munities to  live  under  the  local  laws  enacted  by  them- 
selves and  which  make  them  happiest.  In  spite  of  the 
faults  of  our  dual  system  of  state  and  federal  govern- 
ments, time  has  shown  that  it  was  wisely  conceived, 
that  it  is  well  suited  to  the  conditions,  and  that,  in  all 
likelihood,  it  is  the  only  system  which  could  have  suc- 
ceeded, or  which  can  succeed,  in  our  varied  and  com- 
plicated circumstances. 

Under  such  varying  conditions  how  can  the  funda- 
mental rights  and  duties  of  the  citizen,  in  his  relations 
to  the  nation,  the  state,  the  municipality  and  the  in- 
dividual, or  the  rights  and  duties  of  any  one  of  these 
entities,  in  relation  to  another,  be  secured  and  pro- 
tected? How  can  the  prosperity  and  happiness  of 
the  community,  and  of  the  state  and  nation  be  best 
attained  ?  With  such  a  diversified  and  complex  organ- 
ization there  must  be  fundamental  laws,  which  define 
and  limit  the  spheres  of  activity  of  the  different  parts. 
These  fundamental  laws  are  called  constitutions  and 
charters,  and  each  part  of  the  great  organism  must 
move  in  its  own  proper  sphere,  and  must  not  conflict 
or  interfere  with  the  others.  Otherwise  there  will  be 
confusion  and  chaos. 

If  it  were  not  for  the  restraints  of  our  constitutions 
and  charters,  every  one  knows  that  practically  every 
state  and  community  would  have  hostile  laws  pro- 
hibiting therein  the  equal  rights  of  other  states  and 
communities.  We  would  have  states  and  communities 
exercising  their  ingenuity  in  devising  legislation  which 
would  give  them  some  advantage  over  the  others,  in 

20 


erecting  tariff  Avails,  in  subjecting  one  another  to 
petty  discriminations  and  annoyances,  and  in  resort- 
ing to  all  kinds  of  devices  inspired  by  rivalry  and  com- 
mercial competition  and  enmity.  We  would  have  cer- 
tain powerful  classes  in  a  single  state  or  community, 
depriving,  by  legislation,  others,  of  a  weaker  class,  of 
their  risrhts  to  the  ballot,  of  their  right  to  participate 
in  the  benefits  of  the  school  funds,  and  of  other  rights 
most  essential  to  liberty,  in  fact,  reducing  their  weaker 
fellow  citizens  to  a  condition  little  better  than  serf- 
dom. EA7eryone  knows,  that  even  now,  with  our  con- 
stitutional limitations,  it  is  hard  to  prevent  these 
things.  What  would  it  be  without  them  ?  Instead  of 
national  patriotism,  local  patriotism  would  run  riot, 
and  would  often  revel  in  inspiring  and  inflaming  the 
Avorst  instincts  of  the  community.  The  demagogue 
Avho  would  appeal  to  local  selfishness  and  plausibly  sug- 
gest ways  and  means  of  building  up  the  local  com- 
munity at  the  expense  of  other  communities  or  who 
would  suggest  some  slick  scheme  for  repudiating  just 
obligations — one  that  would  not  appear  too  raw,  and 
with  which  those  of  easy  conscience  would  be  satisfied 
—would  hold  a  high  place  in  some  communities.  Every 
reader  of  history  knows  that  this  is  a  mildly  drawn  pic- 
ture. It  could  be  made  much  more  vivid.  But  we 
will  deal  only  with  naked  facts.  The  facts  stated  are 
not  imaginary.  These  things  have  all  happened  many 
times  in  this  country,  not  only  before  the  adoption  of 
our  Federal  Constitution,  but  since,  and  even  in  our 
oAvn  time. 


21 


Decisions  of  the   Courts  Are  Necessary  to   Preserve  the 
Integrity  of  the  Fundamental  Laws. 

The  major  part  of  the  decisions  of  our  courts  on 
public  questions  have  been  rendered  in  pointing  out 
transgressions  by  some  state  or  local  legislature,  or 
by  some  official  of  the  rights  secured  by  these  consti- 
tutional limitations.  These  cases  have  generally  arisen 
in  an  action  wherein  the  single  citizen  has  sought  to 
maintain  his  rights  against  state  or  community  legis- 
lation, or  against  a  numerous  group  of  other  citizens. 
The  citizen  makes  his  fight  alone,  but  he,  in  reality, 
represents  every  other  citizen  whose  rights  may  at  some 
time  be  similarly  invaded.  The  numbers  and  the  noise 
are  often  on  the  side  of  the  unjust  invasion,  and  often 
in  such  cases,  if  the  court  decides  in  favor  of  the  in- 
dividual, and  against  the  state  or  the  community 
or  the  group,  there  goes  a  roar  that  the  rights  of 
the  people  have  been  stricken  down  by  the  court, 
whereas  the  lone  citizen,  in  a  true  sense,  is  the  true 
representative  of  the  people,  in  upholding  the  constitu- 
tion which  they  themselves  adopted  in  their  calm  and 
deliberate  action,  when  uninfluenced  by  passion  or 
sinister  motives. 

And  in  spite  of  abuse  and  detraction,  in  spite  of 
politics  which  has  sometimes  influenced  their  decisions, 
how  beneficient  is  the  influence  of  the  judiciary  in  such 
cases !  It  acts  as  a  buffer  between  the  rights  of  the 
citizen  and  lawful  authority  on  one  side,  and  the 
passions  and  prejudices  of  the  majority  on  the  other. 
When  a  constitutional  right  is  invaded,  if  there  was 
no  court  to  decide  the  controversy,  what  would  hap- 
pen? With  our  divided  sovereignty  and  passion  for 
local  self-government  and  our  constitutional  limita- 
tions, this  would  be  a  very  serious  question.  To  take 

22 


a  most  likely,  and,  at  the  same  time,  an  extreme  case 
for  illustration,  suppose  a  Southern  State  had  en- 
acted some  law  which  ruthlessly  invaded  the  rights  of 
its  colored  citizens.  If  a  citizen  should  be  deprived 
of  his  rights  and  he  had  no  court  to  resort  to,  he  would 
most  likely  appeal  to  the  Federal  Executive.  The 
Executive  would  have  to  decide  the  matter,  and  if 
it  found  that  the  right  had  been  invaded,  it  would 
be  its  duty  to  protect  the  citizen.  The  only  way  in 
which  this  right  could  be  enforced  against  the  settled 
policy  of  a  state  would  be  by  the  strong  arm  of  the 
Federal  Government.  If  this  were  attempted,  in  the 
inflamed  state  of  the  public  mind,  it  would  most  likely 
lead  to  resistance  and  maybe  to  rebellion.  Now,  the 
court  is  not  only  a  proper  tribunal  to  sit  in  judgment 
on  the  questions  of  the  invasion  of  such  rights,  but  it 
is  also  a  safety  valve,  where  the  passions  and  preju- 
dices, if  they  exist,  may  expend  themselves.  It  is  a 
tribunal  which  can  be  resorted  to  without  the  neces- 
sity of  force.  There,  if  the  state  has  invaded  the 
rights  of  the  citizen,  it  must  show  some  justification 
other  than  prejudice  or  passion.  It  must  put  up  its 
best  arguments  in  defense  of  its  course,  and  there  the 
poor  and  friendless  negro  has  an  equal  chance  with 
the  powerful  state  to  set  forth  his  arguments  in  sup- 
port of  his  rights,  and  to  submit  the  arguments  of  his 
powerful  adversary  to  the  test  of  right  and  of  law. 
Then,  after  calm  deliberation,  uninfluenced  by  any- 
thing other  than  the  right  and  the  law,  the  court  is 
supposed  to  give  its  judgment.  If  the  decision  is  in 
favor  of  the  weaker  party  there  may  be  anger  and 
abuse,  but  it  will  generally  be  visited  on  the  court, 
and  will  not  lead  to  the  open  resistance  of  lawful 
authoritv. 


There   Can   Be   No   True   Liberty  Without  Constitutional 

Restraints — No   Man  or   Group  of   Men  Is   Good 

Enough  or  Fit  to  Exercise  Absolute  and 

Irresponsible  Power  Over  the  Lives 

and  Liberties  of  Their  Fellows. 

It  is  the  object  of  our  Constitution  to  embody  the 
guarantees  and  limitations  which  protect  the  funda- 
mental rights  of  the  citizen,  and  to  determine  the  re- 
spective spheres  of  activity  of  the  nation,  states  and 
local  governments,  which  constitute  either  a  grant 
or  limitation  on  their  respective  rights  and  powers. 
It  is  the  duty  of  the  legislature  to  respect  those  rights, 
and  the  duty  of  the  executive  and  the  judiciary  to 
enforce  them. 

The  constitutional  rights  thus  guaranteed  and 
limited  are  of  especial  importance  to  the  poor  and  the 
weak,  because  the  rich  and  strong  are  better  able  to 
take  care  of  themselves,  and  there  can  be  no  liberty 
or  security,  in  the  true  sense,  unless  those  rights  are 
protected  from  invasion  by  the  government  as  well 
as  by  individuals. 

The  government  should  be  powerless  to  invade 
those  rights,  whether  it  be  the  government  of  a  mon- 
arch or  the  government  of  a  majority.  In  some  re- 
spects the  tyranny  of  the  majority  is  the  more  dan- 
gerous. In  the  case  of  the  monarch  there  is  the  sense 
of  individual  responsibility  and  individual  conscience, 
and  the  dread  of  unpopularity — all  of  which  tends  to 
restrain  him  from  the  wanton  abuse  of  power.  As  is 
well  known  there  is  a  woeful  lack  of  this  sense  in 
majorities  and  masses  of  people.  It  has  been  truly 
said  that  the  evil  and  corrupting  influence  of  irrespon- 
sible power  on  the  human  character  is  one  of  the  best 
known  facts  of  history.  And  this  is  just  as  true  when 

24 


applied  to  a  majority  or  a  group  as  when  applied  to 
an  individual.  It  is  a  truism  that  no  man  or  group 
of  men  are  good  enough  or  fit  to  exercise  absolute 
and  irresponsible  dominion  over  the  lives  or  liberties 
of  their  fellows.  It  is,  therefore,  proper  that  the 
majority  as  well  as  the  minority  should  be  subject  to 
constitutional  restraints,  which  have  been  enacted  by 
the  people  themselves  in  their  calm  and  sober  moments, 
and  which  can  be  invoked  and  enforced  in  moments 
of  excitement  and  passion  by  a  just  and  calm  and 
elevated  judicial  tribunal,  which  will  have  the  cour- 
age and  independence  to  protect  the  rights  of  the 
minority  or  the  individual  against  the  passions  and 
prejudices  of  the  majority.  Without  such  restraints 
there  can  be  no  true  liberty,  and  unless  there  is  an  in- 
dependent, impartial  and  courageous  tribunal  which 
will  protect  the  citizen  when  it  is  sought  to  break 
through  these  restraints,  they  may  prove  of  little 
value. 

How  Did  We   Get   Our  Judicial  System? 

Our  Constitutions,  National  and  State,  have  invar- 
iably and  wisely,  followed  the  distribution  of  the 
powers  of  government  formulated  and  advocated  by 
Montesqui;  namely,  the  legislative,  the  executive  and 
the  judicial.  In  commenting  upon  these  powers,  Mon- 
tesqui said:  (Book  XI,  Chap.  V.) 

"There  is  no  liberty  if  the  judicial  power  be  not  separated 
from  the  legislative  and  executive.  Were  it  joined  with  the 
legislative,  the  life  and  liberty  of  the  subject  would  be  exposed 
to  arbitrary  control;  for  the  judge  would  then  be  the  legisla- 
tor. Were  is  joined  to  the  executive  power  the  judge  might  be- 
have with  violence  and  oppression.  There  would  be  an  end  of 
everything,  were  the  same  man  or  the  same  body,  whether  of  the 
nobles  or  of  the  people,  to  exercise  the  three  powers;  that  of 
enacting  laws,  that  of  executing  public  resolutions,  and  of 
trying  the  causes  of  individuals." 

25 


It  will  be  noticed,  in  passing,  that  the  adoption  of 
the  proposed  constitutional  reforms  of  the  initiative, 
the  referendum  and  the  recall  will  some  day  put  Mon- 
tesqui's  dictum  to  the  test. 

Probably  no  generation  that  ever  inhabited  this 
earth  were  better  versed  in  the  history  and  theory  of 
government  than  the  men  of  the  revolutionary  and 
post-revolutionary  period.  With  them  it  was  a  living, 
practical  problem  as  well  as  a  theoretical  one.  They 
had  lived  through  the  disorder  and  anarchy  of  a  long 
war,  brought  on  by  conflicting  theories  of  governmen- 
tal rights  and  duties,  and  after  that  war  they  went 
through  another  period  of  disorder,  anarchy  and  ex- 
periments in  government,  which  produced  a  group 
of  public  men  whose  ability  and  sagacity  have  never 
been  surpassed. 

In  1780  Massachusetts  adopted  one  of  the  first  state 
constitutions,  and  it  contains  two  paragraphs  which 
have  become  famous,  as  embodiments  of  political  wis- 
dom. 

In  one  (Part  First  Art.  XXX)  it  is  declared  that 

"In  the  government  of  this  commonwealth,  the  legislative  de- 
partment shall  never  exercise  the  executive  and  judicial  powers, 
or  either  of  them;  the  executive  shall  never  exercise  the  legisla- 
tive and  judicial  powers,  or  either  of  them;  the  judicial  shall 
never  exercise  the  legislative  and  executive  powers,  or  either  of 
them ;  to  the  end  it  may  be  a  government  of  laws,  and  not  of 
men." 

And  in  the  same  document  occurs  this  remarkable 
paragraph  which  would  almost  seem  to  have  antici- 
pated our  present  predicament : 

"It  is  essential  to  the  preservation  of  the  rights  of  every 
individual,  his  life,  liberty,  property  and  character,  that  there 
be  an  impartial  interpretation  of  the  laws  and  administration 
of  justice.  It  is  the  right  of  every  citizen  to  be  tried  by  judges 
as  free,  impartial  and  independent  as  the  lot  of  humanity  will 
admit.  It  is,  therefore,  not  only  the  best  policy,  but  for  the 

26 


security  of  the  rights  of  the  people  and  of  every  citizen  that 
the  judges  of  the  Supreme  Judicial  Court  should  hold  their  of- 
fices as  long  as  they  behave  themselves  well."  (Part  First, 
Art.  XXIX.) 

These  declarations  of  the  Massachusetts  Constitu- 
tion were  the  result  of  the  long  and  bitter  experience 
of  the  colony  in  its  struggle  for  a  government  of  law 
as  against  a  government  of  men. 

In  the  early  New  England  Colonies  the  common  law 
of  England  was  rejected.  As  cases  arose  they  were 
decided  by  such  rules  as  the  magistrates  might  think 
right  and  warranted  by  the  precepts  found  in  the 
Bible.  "In  early  Massachusetts  the  written  pleadings 
often  referred  to  the  Bible,  quoting  a  text  from  it  as 
an  authority,  just  as  citations  now  might  be  made  in 
a  lawyer's  brief,  from  a  legal  treatise  or  reported 
case."  (Baldwin,  pp.  4-5.) 

The  Assemblies  acted  as  courts  as  well  as  legisla- 
tures, deciding  controversies  between  private  parties 
on  what  was  considered  equitable  principles.  As  Judge 
Baldwin  says : 

"This  mingling  of  judicial  with  legislative  functions  is  a 
thing  to  be  tolerated  only  while  the  foundations  of  government 
are  being  laid.  As  the  Eoman  plebian,  in  the  days  before  the 
Twelve  Tables,  calmored  for  a  known  and  certain  law,  so  the 
common  people  of  the  early  colonies  insisted  that  from  a  similar 
want  they  held  their  rights  too  much  at  the  will  of  their  rulers." 
(Baldwin,  p.  5.) 

And  he  quotes  Governor  Winthrop,  as  writing,  as 
early  as  1639,  these  words: 

"The  people  had  long  desired  a  body  of  laws  and  thought 
their  condition  very  unsafe  while  so  much  power  rested  in  the 
discretion  of  magistrates." 

In  the  Royal  Provinces  the  judges  were  appointed 
by  the  crown  and  removable  at  pleasure.  In  the  Char- 
ter Colonies  they  were  appointed  by  the  legislative 
bodies  and  the  tenure  was  a  short  one,  generally  a 

27 


year.  There  was  a  persistent  struggle,  on  the  part  of 
the  colonies,  to  secure  greater  permanency  of  their 
judges  so  as  to  afford  them  greater  protection  against 
the  royal  authorities,  but  all  such  attempts  were  nega- 
tived and  defeated  by  the  home  government. 

At  the  same  time,  the  same  kind  of  a  struggle  was 
going  on  in  England.  The  occasions  on  which  the 
crown  could  not  secure  an  interpretation  of  the  law 
favorable  to  its  claims  were  very  rare,  for  it  could 
remove  the  judge  and  appoint  a  subservient  one,  as 
in  the  case  of  the  removal  of  Sir  Edward  Coke,  and 
it  even  punished  jurors  who  had  the  temerity  to  bring 
in  a  verdict  against  it.  But  by  the  Act  of  Settlement 
of  1673,  the  power  of  the  crown  to  remove  or  recall 
a  judge,  at  its  pleasure,  was  taken  away  and  the  judi- 
cial tenure  was  made  dependent  on  good  behavior. 
Parliament,  however,  could,  "by  address,"  compel  the 
King  to  remove  a  judge.  But  even  then  all  judicial 
commissions  expired  on  the  death  of  the  monarch. 
This  was  changed  in  1760,  so  that  the  judge's  tenure 
did  not  terminate  with  the  death  of  the  monarch, 
and  his  salary,  which  had  been  theretofore  paid  by  the 
King  from  his  "Civil  List,"  was  assigned  to  a  per- 
manent charge. 

These  reforms  gave  England  a  system  of  judges 
whose  decisions  it  was  beyond  the  power  of  the  execu- 
tive to  tamper  with,  and  one  that  has  reflected  just 
glory  on  that  country,  and  which  is  an  object  of  praise 
by  the  critics  of  our  own  system. 

The  Constitution  Was  the  Refuge  of  the  Country  From 
the  Evils  of   Unrestrained  Democracy. 

After  the  close  of  the  American  Revolution,  as  is 
well  known,  there  existed  a  condition  of  things  in  this 
country  which  bordered  on  anarchy.  There  was  no  f ed- 

28 


eral  judiciary,  and  no  way  of  forcing  the  states  to  com- 
ply with  the  Articles  of  Confederation.  The  country 
was  poor  and  the  debtors  far  outnumbered  the  credi- 
tors. The  people  in  their  new  found  liberty  did  not  un- 
derstand what  constitutional  restraint  meant.  It  was  a 
period  of  great  unrest,  like  the  present,  and  the  coun- 
try was  full  of  enthusiastic  reformers  with  pet  ideas 
and  schemes  for  righting  the  wrongs  of  the  world. 
The  debtors  controlled  the  legislatures.  The  legis- 
latures passed  laws  to  enable  debtors  to  cheat  their 
creditors.  In  one  of  these  states,  Rhode  Island,  oc- 
curred one  of  the  first  decisions  holding  an  Act  of 
the  Legislature  void,  and  what  might  be  called  the 
first  case  of  recall.  In  1786  the  General  Assembly 
passed  an  act  to  support  the  paper  money  of  that 
year's  issue,  and  ordained  that  anyone  declining  to 
receive  it  in  payment  for  goods  sold  at  par  was  liable 
to  a  qid  tarn  action,  to  be  tried  without  a  jury.  A 
tradesman  was  sued  for  refusing  to  accept  the  paper 
money.  His  counsel  pleaded  the  unconstitutionally 
of  the  act.  The  Court  consisted  of  five  judges,  ap- 
pointed by  the  General  Assembly,  sustained  the  plea, 
treating  the  Charter  from  Charles  II  (for  the  state 
had  no  other  constitution),  and  the  long  usage  under 
it,  as  having  established  trial  by  jury  as  "a  funda- 
mental and  indefeasible  right."  The  decision  caused 
an  outcry  against  the  judges,  their  removal  was  de- 
manded, and  they  were  summoned  before  the  General 
Assembly,  their  creator,  to  explain  the  reasons  for 
their  decisions.  The  judges  protested  against  their 
removal  from  office  until  after  a  formal  trial.  As 
their  offices  were  about  to  expire,  they  were  not  im- 
peached, but  the  ensuing  session  of  the  Assembly 
elected  others  in  their  place.  The  condition  of  the 
country  in  the  period  immediately  preceding  the 

29 


adoption  of  the  Federal  Constitution  is  so  truly, 
graphically  and  succinctly  described  by  Paul  Leices- 
ter Ford  that  I  cannot  do  better  than  quote  from  him. 
In  speaking  of  the  new  State  Governments,  formed 
after  the  Revolution,  he  says: 

"Remembering  with  hatred  the  alien  checks  on  the  popular 
will  which  the  King's  negative  and  courts  so  often,  and  some- 
times with  cruelty,  imposed  on  the  people,  when  these  represen- 
tative bodies  came  to  frame  new  governments,  they  practically 
lodged  all  powers  in  the  legislative  department — hitherto  the 
only  one  which  had  approximated  to  the  people's  will — and  made 
the  executive  and  judicial  branches  its  creatures. 

"Unchecked  by  the  balance  usually  supplied  by  manufacturing 
or  commercial  interests,  the  landholding  classes,  by  their  legis- 
latures, in  turn  unchecked  by  co-ordinate  departments,  ran  riot. 
Paper  money  and  tender  laws  robbed  the  creditor,  regrating  and 
anti-monopoly  acts  ruined  the  trader.  When  the  weak  state 
courts,  true  to  the  principles  of  justice,  sought  to  protect  the 
minority,  the  legislatures  suspended  their  sittings,  or  turned 
the  judges  out  of  office.  *  *  *  For  the  moment  a  faction  of 
agriculturists  reigned  supreme,  and  to  the  honest  and  thought- 
ful, democracy  seemed  to  be  digging  its  own  grave,  through 
the  apparent  inability  of  the  majority  to  control  itself. 

"Fortunately  injustice  to,  and  robbery  of,  fellow  citizens, 
eventually  injure  the  wrongdoer  as  well  as  the  wronged.  A  time 
came  when  the  claims  of  the  creditors  had  been  liquidated  and 
the  goods  of  the  traders  had  been  confiscated,  and  the  former 
refused  further  loans  and  the  latter  laid  in  no  new  stocks.  The 
capitalist  and  the  merchant  were  ruined  or  driven  from  busi- 
ness, and  it  was  the  landholder,  unable  to  sell,  to  buy,  or  to 
borrow,  who  was  the  eventual  sufferer.  Such  was  his  plight 
that  he  could  not  in  many  cases  sell  enough  of  his  products 
to  get  money  to  pay  his  taxes,  and  this  condition  very  quickly 
was  brought  home  to  his  own  instruments  of  wrongdoing,  the 
legislatures,  the  evils  they  had  tried  to  fasten  on  the  minority. 
Taxes  were  unpaid,  and  except  where  the  conditions  were  fac- 
titious, the  state  treasuries  were  empty.  Finally,  in  an  at- 
tempt to  collect  the  taxes  in  Massachusetts,  a  formidable  re- 
volt of  taxpayers  against  the  state  government  was  precipitated. 
Everywhere  the  state  legislatures  had  become  objects  of  con- 
tempt in  just  so  far  as  they  had  sinned  against  classes  of  citi- 

30 


zens,  and  the  people  -were  threatened  with  a  breakdown  of  all 
government  by  the  misuse  of  majority  power.  It  has  been  the 
fashion  of  historians  to  blame  the  Congress  of  the  Confedera- 
tion with  the  ills  of  1781-1789,  but  that  was  an  honest,  and, 
when  possible,  hard  working  body,  and  the  real  culprit  was  not 
the  impotent  shadow  of  national  government,  possessing  al- 
most no  powers  for  good  and  therefore  scarcely  any  powers 
for  evil,  but  the  all  powerful  State  Legislatures,  which  proved 
again  and  again,  as  Jefferson  asserted,  that  one  hundred  and 
seventy-three  despots  would  surely  be  as  oppressive  as  one."  (In- 
troduction to  The  Federalist,  pp.  IX-X.) 

The  revolt  of  taxpayers,  which  Mr.  Ford  refers  to, 
was  "Shay's  Rebellion."  It  was  put  down  by  Governor 
James  Bodwoin.  He  saved  the  State,  but  his  service 
to  the  State  in  the  establishment  of  order  made  him 
so  unpopular  that  he  was  "recalled"  at  the  next  elec- 
tion. Similar  insurrections  took  place  in  Vermont 
and  Xew  Hampshire. 

Xot  only  were  court  sittings  suspended  and  judges 
removed  by  the  Legislatures,  but  in  a  number  of  in- 
stances judges  resigned  their  offices  or  signed  agree- 
ments not  to  hold  courts,  for  a  given  time,  at  the  be- 
hest of  mobs;  which  was  an  indirect  and  summary 
method  adopted  for  obtaining  a  suspension  of  the 
laws.  It  was  these  disturbances  that  aroused  the  peo- 
ple of  the  necessity  of  forming  the  Federal  Constitu- 
tion and  Government.  Mr.  Ford  says : 

"It  was  fear  that  Shay's  revolt  would  spread  to  within  the 
borders  of  its  own  state  that  made  the  New  York  Legislature 
vote  the  call  for  the  Federal  Convention,  and  the  fright  it  gave 
Massachusetts  was  the  cause  for  the  assent  of  her  assembly  to 
what  it  had  negatived  but  a  few  months  before." 

John  Quincy  Adams  said  that  the  Constitution  was 
"extorted  from  the  grinding  necessity  of  a  reluctant 
nation." 

The  trials  and  tribulations  through  which  the  peo- 
ple passed  in  those  days  made  conservatives — and 
even  reactionaries — out  of  many  men  who  had  been 

31 


ardent  and  zealous  democrats.  This  reaction  found 
its  expression  in  the  Federal  Constitution,  and  in 
the  various  State  Constitutions  which  were  adopted 
about  this  time.  It  may  have  been  fortunate  that 
the  country  passed  through  such  trying  times,  for 
the  bitter  experience  served,  as  no  other  school  could, 
to  educate  the  people  in  the  virtues,  the  blessings  and 
the  necessity  of  constitutional  government. 

The  State  Legislatures  had  come  to  be  looked  upon 
as  the  main  causes  of  the  evils  with  which  society  was 
afflicted,  and  as  the  tools  of  the  reckless  and  erratic 
majorities  and  of  the  demagogues.  Therefore  we  find 
the  framers  of  the  Federal  Constitution  bent  upon 
curbing  their  powers  of  interference,  not  only  with 
the  rights  of  the  central  government,  but  also  with 
the  rights  of  the  minority  and  of  the  individual.  We 
find  provision  after  provision  intended  to  prevent  the 
repetition  of  the  excesses  of  the  period.  Hence  the 
provisions  preventing  the  states  from  coining  money, 
emitting  bills  of  credit,  passing  tender  laws,  bills  of 
attainder,  ex  post  facto  laws,  and  laws  impairing  the 
obligations  of  contract.  We  may  also  guess  that  this 
experience  furnished  the  motive  which  dropped  the 
principle  of  the  recall,  which  had  appeared  in  the 
Articles  of  Confederation.  But  this  influence  is  es- 
pecially seen  in  the  "strength  of  the  executive"  and 
the  "stableness  and  independence  of  the  judiciary" 
established  by  the  Constitution. 

I  have  dwelt  at  some  length  on  the  confederation 
period  as  an  illustration  of  the  necessity  for  constitu- 
tional limitations  in  democracies  and  republics,  be- 
cause of  its  nearness  to  our  own  times,  because  it  was 
a  period  of  willful  disregard  of  those  constitutional 
restraints  which,  in  our  day,  seem  so  odious  in  the  eyes 
of  some  of  our  modern  reformers,  who  wish  the  law 

32 


interpreting,  as  well  as  the  law-making  power,  to  be 
entirely  responsive  to  the  popular  will,  and  because 
the  people  involved  were  our  own  people — almost  the 
immediate  progenitors  of  our  best  citizenship.  Those 
alleged  reformers,  wrho  now  so  bitterly  denounce  the 
Constitution  as  a  reactionary  document,  fail  to  tell 
their  hearers  of  the  hopeless  anarchy  and  bankruptcy 
that  preceeded  it,  which  was  produced  by  the  un- 
restrained, unscrupulous  and  erratic  rule  of  popular 
majorities,  and  how  the  constitution  saved  the  nation 
and  made  it  a  place  fit  to  live  in ;  how  it  lifted  the 
nation,  the  states  and  the  people  out  of  the  prevailing 
anarchy  and  bankruptcy  and  started  them  on  a  career 
of  a  century  and  a  quarter  of  unexampled  prosperity. 
I  have  purposely  refrained  from  turning  back  to 
the  histories  of  the  republics  of  Athens  and  Corinth 
and  medieval  Italy,  which  are  full  of  examples  of  the 
unscrupulousness,  the  bigotry  and  the  selfish  indif- 
ference to  justice  and  humanity,  of  which  a  majority 
may  become  guilty,  partly  because  those  were  peoples 
of  a  different  race,  and  partly  because  those  times  are 
far  removed  from  our  own.  It  might  be  claimed  that 
the  world  has  progressed  since  those  times.  But  the 
people  of  the  Confederation  period  are  only  a  few 
generations  removed  from  ourselves,  and  they  were 
people  of  the  Anglo-Saxon  stock.  Were  they,  after 
all,  so  different  from  the  people  of  our  own  day? 

The  History  of  Our  Country  Since  the  Adoption  of  the 
Constitution  Furnishes  Many  Examples  Showing 

the  Necessity  of  Constitutional  Restrainst. 

The  history  of  our  country,  since  the  adoption  of 

the  Constitution,  also  affords  many  examples  of  the 

moral  weakness  of  majorities,  just  as  flagrant  as  those 

of  the  Confederation,  and,  if  it  were  not  for  the  re- 

33 


straints  of  our  Constitution,  the  results  of  the  vagaries 
and  latent  perversity  of  the  descendents  of  the  citi- 
zens of  the  Confederation  would  have  been  just  as 
odious.  We  need  not  go  back  as  far  as  the  period  of 
the  Confederation  for  glaring  examples  of  the  in- 
justice and  dishonesty  which  may  become  prevalent 
in  states  and  democratic  communities,  or  for  ex- 
amples of  the  oppression  of  the  minority  by  the  ma- 
jority, if  unrestrained  by  constitutional  restrictions. 
We  may  instance,  particularly,  the  contest  between 
the  "Belief"  and  "Anti-Relief"  parties  and  the  U01d 
Court"  and  "New  Court"  parties  in  Kentucky  from 
1818  to  1828,  and  the  State  Repudiation  contest  in 
Mississippi  from  1841  to  1855.  Indeed,  we  need  only 
go  back  to  a  time  within  the  memory  of  men  at  this 
table,  to  the  Abolition  period,  the  Know-Nothing 
period,  the  Ku  Klux  period,  the  Greenback  period, 
the  Populistic  period,  the  Anti-Chinese  period,  and 
the  A.  P.  A.  period,  and  a  slight  exercise  of  the  imag- 
ination will  suggest  what  unconscionable  things  might 
have  happened  in  our  country,  and  in  many  of  our 
best  communities,  were  it  not  for  the  sobering 
restraints  of  our  Constitution.  And  it  will  be  re- 
called also,  that  many  of  the  worst  passions  and  the 
wildest  schemes  of  those  periods  occurred  in  com- 
munities like  those  of  the  Southern  States  and  the 
Middle  West,  which  were  distinctively  American  or 
Anglo-Saxon,  and  whose  populations  were  largely  the 
direct  descendents,  only  a  generation  or  two  removed, 
from  the  people  of  the  Confederation. 

Repudiation  in  Mississippi. 

In  Mississippi  the  State  repudiated  $15,000,000  in 
bonds  for  which  it  had  become  deliberately  respon- 
sible, and  for  which  the  bondholders  had  paid  full 

34 


value,  and  in  some  cases  a  premium,  relying  upon 
the  pledge  of  the  credit  of  the  state.  Repudiation 
and  Anti-Repudiation  were  party  issues  for  many 
years.  In  1852,  the  validity  of  these  bonds  came  be- 
bore  the  Court  of  Appeals,  and  the  Court  had  the 
courage  to  sustain  their  validity.  In  the  state  elec- 
tion of  the  following  year  one  of  the  judges  of  the 
the  Court  sought  re-election.  The  ticket  of  the  Re- 
pudiationists  was  triumphantly  elected,  and  the  judge 
who  had  decided  against  the  state  was  punished  by 
being  ignominiously  defeated.  The  state,  later,  by 
popular  vote,  passed  a  constitutional  amendment  for- 
bidding the  payment  of  the  bonds. 

The  "Relief"  and  "Anti-Relief"  and  the  "Old  Court"  and 
"New  Court"  Contests  in  Kentucky. 

In  the  "Relief"  and  "Anti-Relief"  contest  in  Ken- 
tucky, the  courts  were  also  the  storm  center.  It  is 
one  of  the  most  exciting  episodes  in  American  con- 
stitutional history.  Between  1818  and  1828,  most  of 
the  states  in  the  Mississippi  Valley  were  possessed  with 
the  mania  of  producing  prosperity  by  the  issue  of 
paper  money  through  the  medium  of  banks  in  which 
the  state  was,  generally,  a  large  stockholder,  and  for 
which  the  state  was  supposed  to  have  pledged  its 
credit,  morally,  if  not  legally.  The  most  flagrant 
abuses  of  this  banking  system  occurred  in  Ohio,  Illi- 
nois, Missouri,  Tennessee  and  Kentucky,  but  the  most 
eventful  history  connected  with  the  mania  was  enacted 
in  Kentucky.  As  Professor  Sumner  says  (Life  of 
Andrew  Jackson,  p.  119)  : 

"It  was  the  outcome  of  the  application  of  political  forces 
to  the  relations  of  debtor  and  creditor.  It  necessarily  followed 
that  political  measures  were  brought  into  collision  with  con- 
stitutional provisions,  and  with  judicial  institutions,  or  the  in- 

35 


terpreters  and  administration  of  the  same,  on  such  points  as 
the  public  credit,  the  security  of  contracts,  the  sanctity  of  vested 
rights,  the  independence  of  the  judiciary  and  its  power  to  pass 
on  the  constitutionality  of  laws/' 

The  state  was  flooded  with  paper  money,  issued 
by  the  Bank  of  Kentucky,  in  which  the  State  was  a 
large  stockholder.  This  bank  had  to  suspend,  and  the 
cry  was  for  the  issue  of  more  paper  money  and  the 
suspension  of  specie  payments.  As  a  "relief"  measure 
the  legislature  chartered  a  new  bank  called  the  Bank 
of  the  Commonwealth  of  Kentucky,  which  was  author- 
ized to  issue  notes  to  the  extent  of  $3,000,000.  It  had 
no  stockholders,  but  its  president  and  directors  were 
elected  annually  by  the  legislature'.  Its-^nates  were 
issued  on  loans  on  mortgage  security  'artid  Vere  ap- 
portioned among  the  counties  in  proportion  to  their 
taxable  property.  It  was  to  be  a  truly  philanthropic 
and  popular  institution.  Loans  were  to  be  made  to 
those  who  needed  them  "for  the  purpose  of  paying 
his,  her  or  their  just  debts"  or  to  purchase  the  pro- 
ducts of  the  country  for  export.  No  private  banker 
was  to  reap  any  profit  from  its  operations.  All  the 
profits  were  to  go  to  the  state.  Its  notes  were  legal 
tender  to  and  from  the  state.  The  only  real  capital 
ever  invested  in  it,  was  $7,000,  appropriated  by  the 
Legislature  to  buy  books,  paper  and  plates  for  print- 
ing the  notes.  As  Professor  Sumner  says:  "It  was, 
therefore,  just  one  of  the  grand  swindling  concerns 
common  at  that  period."  As  a  further  "relief"  meas- 
ure in  connection  with  this  bank,  the  Legislature 
passed  a  "replevin"  and  "endorsement"  law  extending 
the  time  of  the  debtor  two  years,  in  which  to  redeem 
from  a  sale,  under  execution,  unless  the  creditor 
would  endorse  on  the  note  his  willingness  to  take  the 
notes  of  the  Bank  of  the  Commonwealth  of  Kentucky 

36 


in  payment,  if  the  debtor  could  pay  them.  In  any 
event,  the  debtor's  time  was  extended  one  year.  A 
little  later  the  Legislature  passed  an  act  which  pro- 
hibited the  sale  of  land,  on  execution,  for  less  than 
three-fourths  of  its  value,  as  appraised  by  a  jury  of 
neighbors.  Of  course  this  jury  would  be  composed 
of  men  in  the  same  predicament  as  the  owner  of  the 
land.  In  1822  Judge  Clark  of  the  Circuit  Court  of 
Kentucky  declared  the  replevin  law  was  unconstitu- 
tional. The  judge  was  cited  before  the  Legislature, 
and  an  attempt  was  made  to  have  him  removed  by  the 
Governor,  on  the  resolution  or  address  of  the  Legis- 
lature. The  Constitution  required  a  two-thirds  vote 
to  accomplish  such  a  removal,  and  the  attempted  re- 
moval failed  for  lack  of  the  necessary  two-thirds,  the 
vote  standing  fifty-nine  for  removal  and  thirty-five 
against.  The  Governor  of  the  State  denounced  the 
decision  of  the  court,  and  the  people  very  generally 
regarded  the  decision  "as  a  usurpation  by  the  judges, 
and  an  assault  upon  their  liberties,"  (Sumner,  p.  126). 
In  1823,  in  the  face  of  this  clamor  and  a  hostile 
Legislature,  the  Court  of  Appeals  affirmed  the  un- 
constitutionally of  the  law.  The  Legislature  answered 
this  decision  of  the  court  by  declaring  that  the  law 
u-tix  constitutional.  The  issue  was  thus  thrown  into 
the  political  arena. 

Professor  Sumner  says,  (p.  126)  : 

"The  relief  system  thus  brought  directly  to  the  test  the 
power  of  a  system  of  constitutional  guarantees,  administered 
by  an  independent  judiciary  to  protect  rights  against  an  in- 
terested and  corrupt  majority  of  debtors,  which  was  using  its 
power,  under  democratic-republican  self-government,  to  rob  the 
minority  of  creditors." 

The  state  election  in  1824  was  fought  on  the  issue 
of  electing  a  legislature  which  should  have  the  neces- 
sary two-thirds  required  by  the  Constitution  to  adopt 

37 


an  address  to  the  governor,  requiring  him  to  remove 
the  judges  who  had  decided  against  the  constitution- 
ality of  the  "relief"  laws.  The  "Relief"  party 
declared  "that  liberty  and  republicanism  were  at  stake 
and  that  the  contest  was  to  see  whether  judges  should 
be  above  the  law."  (Sumner,  p.  127).  Plainly,  it  was 
proposed  to  construe  the  constitution  by  popular  elec- 
tion. The  new  legislature  summoned  the  judges  before 
it  to  show  cause  why  they  should  not  be  removed,  but 
they  made  such  a  powerful  defense  that  the  "Relief" 
party,  although  it  had  a  good  majority,  could  not  con- 
trol the  requisite  two-thirds  vote.  Foiled  in  its  attempt 
to  adopt  an  address  to  the  Governor  by  a  two-thirds 
vote,  the  Legislature  then  adopted  the  revolutionary 
method  of  trying  to  legislate  the  Court  out  of  office 
by  repealing  the  law  under  which  the  Court  was  or- 
ganized, and  it  immediately  passed  a  new  act  creating 
a  new  Court  of  Appeals.  The  old  Court  denied  the 
constitutionality  of  the  repealing  act,  and  continued 
to  do  business.  The  new  Court  organized  and  seized 
the  court  records  and  held  them  by  military  force. 
The  moderation  of  the  old  Court  party  was  all  that 
prevented  civil  war.  Both  Courts  continued  to  hear 
and  decide  cases.  New  appeals  from  inferior  courts 
were  entered  in  one  or  the  other  Appellate  Court,  ac- 
cording to  the  court  which  the  appellant's  counsel 
regarded  as  the  rightful  tribunal.  The  inferior 
tribunals  were  in  despair  as  to  which  court  to  obey. 

In  the  meantime,  the  conditions  of  business  and  pol- 
itics were  deplorable.  Sumner  quotes  a  writer  in  Niles 
Register  (23  Niles,  337)  as  saying: 

The  Bank  of  the  Commonwealth  of  Kentucky  "has  nearly 
destroyed  all  commerce  or  trade,  extinguished  personal  credit, 
and  broken  down  confidence  between  man  and  man,  as  well 
as  damped  and  depressed  the  industry  of  the  State,  but  the 

38 


people  are  beginning  to  get  tired  of  its  blessings,  and  its  paper 
mill  will  soon  cease  working,  leaving  a  debt,  however,  due 
to  it  from  the  poorest  of  the  people  to  the  amount  of  two  and 
a  half  to  three  millions  of  dollars." 

People  left  the  State  in  great  numbers  and  very 
few  came  in.  In  1825,  Governor  Desha,  a  partisan 
of  the  New  Court  party,  in  his  message  to  the  Legis- 
lature, claimed  that  this  emigration  from  the  State 
was  due  to  the  decisions  of  the  courts. 

Sumner  says   (pp.  127-8)   that 

"Two  classes  of  persons  were  driven  from  the  State  by  the 
Eelief  System;  (1)  those  who  wanted  by  steady  industry  and 
accumulation,  without  borrowing,  to  acquire  capital,  and  to  be 
secure  in  the  possession  of  it,  and  (2)  those  who  could  not, 
under  the  prevailing  depression,  work  off  the  mortgages  which 
they  had  eagerly  given  to  the  Bank  of  the  Commonwealth  for 
its  notes,  in  the  hope  of  thus  escaping  from  old  embarrass- 
ments. After  five  years  their  condition  was  hopeless,  and  if 
they  had  any  energy  they  started  westward  to  begin  again." 

In  the  state  election  in  1826,  the  Old  Court  party 
carried  both  houses  of  the  Legislature.  An  act  was 
passed,  over  the  Governor's  veto,  declaring  the  act 
abolishing  the  old  court  unconstitutional  and  void. 
The  Replevin  Law  was  also  repealed,  and  Kentucky 
immediately  entered  upon  a  career  of  sanity  and  pros- 
perity. 

In  speaking  of  the  swindle  of  the  Bank  of  the  Com- 
monwealth and  the  heavy  losses  it  entailed,  Professor 
Sumner  says: 

"Who  got  the  gain !  It  seems  that  there  must  have  been  private 
and  personal  interests  at  stake  to  account  for  the  rage  which 
was  excited  by  these  decisions,  which  touched  this  bank,  and 
by  the  intensity  of  friendship  for  it,  which  was  manifested  by 
a  leading  political  clique." 


39 


The  Cries:  "You  Distrust  the  People,"  "If  the  People  Are 
Competent  to  Elect  Judges  They  Are 

Competent  to  Recall  Them." 

If  such  things  are  likely  to  happen  in  communities 
with  traditions  of  liberty  and  constitutional  rights  and 
restraints,  what  may  we  expect  in  times  of  crises  or 
agitation,  in  communities  where  large  masses  of  the 
population  are  new  to  the  country  and  its  institutions, 
and  have  no  such  heritage?  I  do  not  mention  these 
things  in  disparagement  of  democratic  government 
as  compared  with  any  other  kind  of  government.  But 
the  great  shibboleth  of  the  advocates  of  the  recall  of 
the  judges,  and  about  their  only  argument  against 
it  are  these :  "You  distrust  the  people,"  and  "If  the  peo- 
ple are  competent  to  elect  judges,  they  are  competent 
to  recall  them."  In  most  cases  this  is  merely  "lip  ser- 
vice," and  insincere  flattery  of  the  people.  In  most 
cases  it  is  doubtful  if  those  who  make  these  declara- 
tions, in  their  own  hearts,  believe  them  to  be  valid 
arguments  in  favor  of  the  recall  of  the  judges,  and 
many  of  them  will  privately  admit  that  they  do  not 
believe  the  people  are  competent  to  elect  judges,  and 
that  the  popular  election  of  judges  is  the  greatest 
weakness  of  our  judicial  system.  Are  the  people  bet- 
ter qualified  to  elect  judges  than  mayors,  supervisors 
and  members  of  the  legislature?  All  of  these  officers 
are  selected  from  the  citizens  of  a  single  city ;  some 
from  small  districts  or  neighborhoods,  where  nearly 
everyone  is  supposed  to  know,  or  to  know  all  about, 
his  neighbors.  These  same  persons  who  are  shocked 
if  you  express  the  belief  that  the  people  are  not  qual- 
ified to  elect  judges,  believe  that  in  the  great  majority 
of  instances  the  people  have  made  a  dismal  failure  in 
selecting  such  other  officers.  But  the  selection  of  good 
judges  is  the  most  difficult  and  important  task  the 

40 


people  are  called  upon  to  perform.  The  judge  should 
be  a  man  of  special  qualifications,  which  can  be 
properly  passed  upon  only  by  those  who  have  watched 
him  in  the  practice  of  the  law.  These  qualifications 
do  not  come  intimately  under  the  public  eye,  and  a 
candidate  who  is  a  good  "mixer,"  who  is  a  "hale  fel- 
low" with  large  numbers  of  people,  who  is  "magnetic," 
and  who  belongs  to  numerous  societies  and  organiza- 
tions, is  the  man  who  will  usually  be  elected  over  a 
man  better  endowed  with  the  solid  attainments  and 
traits  of  character  which  go  to  make  a  good  judge. 
If  a  doctor  were  to  be  selected,  either  to  treat  a  pri- 
vate case,  or  to  stamp  out  an  epidemic,  the  absurdity 
of  leaving  the  choice  to  the  competition  of  a  popular 
election  would  be  apparent  to  most  people.  It  is  no 
disparagement  of  the  people  to  say  that  they  would 
be  likely  to  make  a  bad  selection,  because  they  have 
not  the  requisite  information  to  make  the  choice.  It  is 
little  less  absurd  to  impose  upon  the  people  at  large 
the  duty  of  electing  judges.  They  cannot  have  the 
requisite  knowledge  or  discrimination  to  make  the  best 
selections.  The  very. parties  who  are  responsible  for 
this  proposal  to  recall  the  judges  have  given  the 
strongest  proofs  of  their  own  belief  in  the  inability 
of  the  people  to  elect  the  best  judges,  for  they,  them- 
selves, have  proposed  another  amendment  to  the  Con- 
stitution, to  be  voted  on  at  the  same  time  with  the  re- 
call amendment,  whereby  they  propose  to  take  from 
the  people  the  power  of  electing  members  of  the  Rail- 
road Commission — a  judicial  office — and  conferring  the 
power  of  appointment  upon  the  Governor.  And  these 
same  parties  who  are  responsible  for  the  proposal  to  re- 
call the  judges  have  given  another  striking  proof  of 
their  insincerity  and  of  their  own  distrust  of  the  people, 
by  the  manner  in  which  they  have  manipulated  this 

41 


proposed  recall  amendment.  As  they  well  know,  there 
were  many  advocates  of  the  recall  of  the  legislative  and 
executive  officers,  who  did  not  believe  in  the  recall  of 
judges.  Representatives  of  this  latter  class  beseeched 
the  legislators,  and  the  powers  behind  the  legislators, 
to  submit  the  different  propositions  to  the  people  sep- 
arately. Could  they  not  trust  the  people  to  vote  dis- 
criminately  on  such  simple  propositions  as  these  ?  And 
was  not  that  the  proper  and  honest  way  to  let  the 
people  say  how  far  they  would  stand  for  the  recall? 
But  the  reformers  turned  deaf  ears  to  these  entreaties. 
They  insisted  on  compelling  all  who  believed  in  any 
kind  of  a  recall  to  swallow  the  recall  of  the  judges  also, 
or  lose  all  chance  for  any  recall  legislation. 

The  Argument  Against  the  Recall  of  Judges  is  Not  an 
Argument  Against  Popular  Government. 

Personally,  I  am  a  firm  believer  in  democratic  gov- 
ernment, and  a  follower  of  Jefferson  in  almost  every- 
thing except  his  attitude  toward  the  judiciary.*  On 
that  subject,  I  believe  he  was  wrong.  But  his  error, 
in  that  respect,  may  be  excused  by  the  great  provoca- 
tions and  the  exceedingly  bitter  partisan  strife  of  his 
day,  when  practically  all  of  the  judicial  offices  were 
filled  by  partisans  of  the  opposite  party.  So  also,  there 
are  palliating  circumstances  for  the  errors  of  the  sin- 
cere advocates  of  the  recall.  Judges  are  human  and 


Note. — Down  to  the  year  1832,  no  State  provided  for  the 
election  of  judges  by  popular  vote.  In  that  year,  in  the 
Constitutional  Convention  of  Mississippi,  Mr.  Henry  S.  Foote, 
afterwards  U.  S.  Senator,  and  Governor  of  the  State,  induced 
its  adoption.  It  rapidly  spread  to  other  States.  In  Mr. 
Foote's  "Reminiscences,"  published  in  his  later  years  (1874), 
he  expressed  regret  at  his  part  in  this  change.  See  his  state- 
ment, Appendix  No.  1. 

It  is  curious  to  note  that  Mississippi  was  also  the  first 
State  to  abandon  the  popular  election  of  judges  and  to  re- 
turn to  the  appointive  system.  By  the  Constitution  of  1890, 
the  Governor  appoints  and  the  Senate  confirms. 

42 


make  mistakes;  some  have  been  bad,  and  it  is  to  be 
presumed  that  others  will  be  bad;  but,  on  the  whole, 
and  in  a  great  majority  of  cases,  our  judges  have  been 
good  men;  and  it  is  not  necessary  to  burn  down  the 
barn  in  order  to  get  rid  of  the  rats. 

It  is  not  a  conclusive  argument  against  popular 
government,  or  democracy,  to  show  that  it  has,  many 
times  in  the  past,  been  guilty  of  tyranny,  oppression, 
injustice  and  temporary  excesses.  What  form  of  gov- 
ernment has  been  guiltless  of  them?  Neither  is  it  a 
conclusive  argument  to  show,  as  is  often  done,  that 
popular  governments  have  furnished  many  examples  of 
misgovernment,  of  weak  government;  and  of  unwise, 
dishonest  and  even  stupid  legislation.  What  form  of 
government  has  been  free  from  these?  To  admit  all 
the  sins  which  have  been  charged  against  popular  gov- 
ernments, or  democracies,  is  simply  to  admit  that  the 
majorities  which  have  controlled  them,  have  been 
composed  of  men  possessed  of  all  the  frailties  of  men. 
But  when  we  admit  this  much,  will  not  popular  gov- 
ernment measure  up  well  and  compare  very  favorably 
with  the  monarchies,  oligarchies  and  aristocracies 
which,  for  thirty  centuries,  have  furnished  the  great 
majority  of  the  dreadful  examples  which  show,  as 
Oxenstiern  said,  "With  how  little  wisdom  the  world 
is  governed!"  The  great  majority  of  the  examples  of 
tyranny,  of  ruthless  oppression,  of  wickedness,  of 
dishonesty,  of  spoilation  and  of  stupidity  which  have 
occurred  in  the  world's  history,  have  not  been  fur- 
nished by  popular  governments  or  governments  by 
majorities,  but  by  governments  of  minorities.  Who 
that  has  read  history  can  honestly  assert  that  the  rule 
of  the  minority, — the  government  of  the  monarchy, 
or  of  the  oligarchy,  or  of  the  aristocracy, — has  shown 

43 


that  it  is  more  worthy  of  confidence  than  the  rule  of 
majority  f 

On  the  other  hand,  the  history  of  our  own  country 
is  full  of  examples  of  the  wisdom  and  beneficence  of 
majority  government.  But  what  of  that?  Is  that 
any  argument  for  the  proposition  that  the  majority 
should  be  left  absolutely  free  to  enact  its  will,  on  all 
occasions,  unrestrained  by  such  wholesome  and  reason- 
able restraint  as,  in  times  of  calm  judgment,  may  be 
dictated  by  honesty  and  good  policy?  Every  student 
of  politics  and  of  government  knows  that  in  times  of 
great  agitation  and  popular  excitement,  when  party 
or  class  feeling  runs  high,  and  when  the  chasm  be- 
tween contending  parties  or  classes  becomes  so  great 
and  wide  that  neither  side  can  any  longer  rely  upon 
mere  reason  or  argument  to  win  converts  from  the 
other  side,  the  stronger  party  will  be  tempted,  if 
strong  enough,  and  will  too  often  yield  to  the  temp- 
tation, to  force  its  opinions  and  its  will  upon  the 
weaker  party  by  physical  force.  It  may  do  this,  not 
always  as  the  result  of  unreasoning  and  angry  passion, 
but  often  from  a  pious  or  zealous  confidence  in  the 
righteousness  of  its  own  cause  and  in  the  goodness  of 
its  own  intentions.  And  this  will  be  equally  true, 
whether  the  stronger  party  is  a  majority  or  a  minority. 
History  unerringly  shows  that,  at  such  times,  the 
weaker  party  needs  a  more  certain  and  effective  pro- 
tection than  appeals  to  the  reason  and  justice  of  its 
oppressor.  Can  any  man  be  sincere  who  denies  that 
this  is  the  lesson  of  history;  and  that  there  should  be 
some  effective  protection  for  those  who  dissent  from 
the  creed  of  the  stronger  party,  whether  that  creed 
be  religious,  political  or  any  other?  Most  certainly, 
there  should  be  some  paramount  law  for  the  protec- 
tion of  the  weak,  the  lowly,  the  unpopular,  the  dis- 

44 


senter;  and  above  all,  for  the  protection  of  freedom 
of  speech,  freedom  of  the  press,  freedom  of  religion 
and  the  security  of  property.  The  protection  guar- 
anteed by  our  constitutions  in  these  matters  has  been 
won,  only  after  centuries  of  struggle ;  and  it  is  too 
sacred  to  be  left  to  the  whim  of  any  ruling  class, 
whether  it  be  a  majority  or  a  minority.  Has  there  ever 
been  devised  a  better  means  for  accomplishing  this 
protection  than  the  written  constitution,  and  the 
courts,  imperfect  as  they  may  be?  What  can  be  of 
greater  importance  than  the  impartiality  and  inde- 
pendence of  the  judges  who  sit  in  those  courts  for  the 
protection  of  those  rights  ? 

There  Can  be  no  Liberty  or  Prosperity  Without  Proper 
Constitutional  Restraints,  and  Any  Scheme  Which 
Tends  to  Destroy  or  Weaken  the  Independ- 
ence and  Courage  of  the  Judges  Makes 
Against  the  Security  of  the  Funda- 
mental Rights  of  the  Citizen. 

How  can  there  be  "equal  and  exact  justice  to  all 
men"  without  these  constitutional  restraints,  and  with- 
out an  independent  tribunal  sufficient  for  their  pro- 
tection ?  It  seems  certain  that  no  liberty  or  prosperity 
can  be  long  lived  without  such  restraints  or  such  a 
tribunal.  Any  scheme  or  any  policy  which  will  de- 
stroy or  weaken  those  restraints  or  which  will  destroy 
or  weaken  the  independence  of  the  judges,  who  are 
to  interpret  and  protect  those  rights,  most  certainly 
makes  against  the  security  of  the  fundamental  rights 
of  the  citizen. 

The  teachings  of  history  show  that  liberty  has 
nothing  to  fear  from  an  independent  judiciary;  and 
that  in  nearly  every  instance  where  judges  have 
trampled  on  liberty  and  invaded  popular  rights,  it 

45 


has  been  where  the  judge  was  subject  to  removal  by 
the  power  that  appointed  him  and  whose  will  he  was 
serving  when  the  misdeed  occurred. 

It  is  Unfortunate  that  Judges  are   Compelled  to   Decide 
Political  Questions. 

It  is  unfortunate  that  judges  are  compelled  to  de- 
cide political  questions;  for  it  is  oftenest  in  such 
questions  that  great  popular  antagonisms  are  aroused ; 
and  it  is  here  also  that  most  dissatisfaction  with  the 
decisions  of  the  courts  is  likely  to  arise.  If  the  judge 
is  a  strong  party  man,  the  decision  on  a  political  ques- 
tion is  apt  to  be  colored  by  political  bias;  and  if  he 
decides  in  favor  of  the  party  that  elected  him,  it  will 
be  very  hard  to  convince  the  partisans  of  the  opposite 
party  that  the  decision  is  not  a  political  one.  But 
these  questions  do  arise  in  the  interpreting  of  the  laws 
and  must  be  decided;  and,  unfortunate  as  it  may  be, 
who  is  better  qualified  to  pass  on  them  than  the 
courts?  Who  is  more  likely  to  render  an  unbiased 
decision ;  and  whose  decision  will  command  any  greater 
respect  ? 

The  most  obvious  remedy  for  this  evil  is  to  remove 
the  judges  as  far  as  possible  from  politics,  and  make 
them  entirely  independent  of  the  appointing  power, 
and  removable  only  after  some  kind  of  a  fair  trial 
wherein  the  judge  shall  have  an  opportunity  to  be 
heard  in  his  own  defense. 

But  notwithstanding  the  weaknesses  of  our  judicial 
system,  the  courts  have  generally  been  accorded  a  great 
measure  of  respect  and  confidence  by  the  majority  of 
our  people.  The  people  have  recognized  the  courts 
as  the  bulwark  of  conservatism  and  the  hope  of  the 
oppressed.  They  know  that  the  true  function  of  the 
court  is  to  stand  impartially  between  man  and  man, 

46 


and  even  between  the  whole  people  and  the  man  they 
prosecute,  in  an  attempt  to  deprive  him  of  his  life  or 
liberty  or  property.  They  look  to  the  court  as  the 
guardian  of  their  peace  and  safety  in  the  ordinary 
affairs  of  life.  They  believe  that,  in  the  main,  the 
courts  have  fulfilled  their  function  fairly  well;  and 
it  is  nothing  short  of  a  public  calamity  when  the 
people  lose  confidence  in  the  courts,  and  in  the  fair 
and  impartial  interpretation  of  the  laws;  for  then 
the  greatest  prop  to  a  stable  government  has  become 
shattered. 

The  Decisions  of  the  Courts  are  Misrepresented  and  Public 
Confidence  Undermind  by  Malcontents  who  wish 

to  Overthrow  the  Existing  Order. 
It  is  to  be  expected,  therefore,  in  this  period  of 
unrest,  on  which  we  have  entered,  that  the  courts 
should  become  the  target  of  the  malcontents  and  should 
come  in  for  a  good  share  of  the  attacks  levelled  at 
the  existing  order  of  things;  that  their  faults  should 
be  greatly  magnified,  their  motives  maligned  and  their 
decisions  misrepresented,  by  those  who  desire  to  dis- 
credit all  existing  law  and  all  orderly  government. 
The  very  respect  and  confidence  which  the  courts 
have  enjoyed  have  been  the  motive  for  some  of  these 
attacks.  To  undermine  the  public  confidence  in  the 
institution  that  has  been  the  corner  stone  of  stable 
government  and  that  still  retained  the  greatest  share 
of  such  confidence  would  be  the  greatest  victory  of  the 
malcontents.  And  as  a  result  of  these  attacks  upon  the 
integrity  and  independence  of  the  courts  many  good 
and  well  meaning  people  are  thoughtlessly  carried 
away  by  the  subtle  and  plausible  misrepresentation  of 
the  malcontents,  and  are  unconsciously  allying  them- 
selves with  the  very  worst  enemies  of  society.  Most 

47 


of  the  attacks  on  the  judges  are  by  general  innendo. 
They  lack  specifications;  and  they  are  nearly  always 
untrue.  It  is  outrageous  that  judges  should  be  abused 
and  slandered  for  making  decisions  which  follow  the 
law,  and  uphold  the  constitution,  as  is  often  the  case. 
The  judges  in  such  cases  have  only  done  what  they 
are  required  to  do  by  their  oath  of  office,  and  what 
they  are  elected  to  do. 

A  reading  of  some  of  the  organs  of  public  opinion 
devoted  to  the  advocacy  of  the  recall  will  convince 
anyone  that  the  attacks  on  the  judiciary,  in  this  state, 
for  instance,  are  only  one  phase  of  a  much  broader 
question.  Their  purpose  is  to  destroy  public  con- 
fidence in  the  whole  judicial  system  as  a  function  of 
government.  The  vicious  attacks  on  the  courts  for 
declaring  acts  of  the  legislature  unconstitutional  shows 
this  to  be  fact.  Whether  it  is  or  is  not  a  wise  policy 
to  permit  the  courts  to  declare  acts  unconsitutional  is 
beside  the  question;  for  it  has  been  an  established 
principle  of  law  in  this  country  for  more  than  a  cen- 
tury. No  principle  is  better  established.  This  practice 
is  now,  however,  denounced  in  the  most  bitter  terms, 
as  a  "judicial  usurpation,"  "a  prevention  of  pop- 
ular government,"  "a  government  by  judges,"  "a  ju- 
dicial tyranny,"  "judical  permission  to  enact  laws," 
"a  failure  to  respond  to  the  popular  will,"  "the  chain- 
ing of  the  present  to  the  dead  corpse  of  the  past," 
and  other  like  expressions;  all  intended  to  prejudice 
and  poison  the  popular  mind  as  to  the  wickedness  of 
those  judges  who  indulge  such  a  practice.  Could  any- 
thing be  more  unfair  than  to  use  such  an  argument 
in  favor  of  the  recall  of  the  judiciary?  The  logic 
of  the  argument,  of  course,  is  that,  when  we  have  the 
recall,  this  practice  will  stop.  Now  if  it  is  a  fact  that 
this  principle  is  the  settled  law  by  the  precedents  of 

43 


a  century,  one  would  think  that  the  judge  who  had 
sworn  to  uphold  the  laws,  and  then  ignored  it,  ought 
to  be  recalled,  rather  than  the  judge  who  conscienti- 
ously followed  it.  The  principle  itself  is  well  settled ; 
but  if  it  is  a  wrong  principle  or  a  wrong  policy,  why 
not  change  it,  in  a  legal  and  orderly  manner,  by  chang- 
ing the  constitution — which  the  majority  has  a  right 
to  do, — instead  of  attempting  to  amend  it,  in  an  ir- 
regular manner,  by  coercing  the  judge  to  violate  his 
oath,  and  independence,  and  self  respect,  under  threats 
of  a  recall  ?  In  other  words,  if  the  legislature  enacts 
a  law  which  contravenes  the  constitution  or  a  funda- 
mental law  enacted  by  the  people  themselves  for 
the  very  purpose  of  placing  limits  on  legislative  action, 
the  judge  who  upholds  the  fundamental  law  will  be 
recalled,  if  the  later,  or  legislature  made  law,  is  pop- 
ular with  a  majority  of  the  people.  Of  course  it  follows 
that  if  the  later  law  is  not  popular;  if  the  legislature 
has  not  properly  interpreted  the  popular  will ;  of  if 
it  is  thought  to  be  a  corrupt  legislature,  and  the  new 
law  is  thought  to  be  favorable  to  the  "interests"  or 
to  "big  business,"  then  the  judge  must  ignore  it  and 
sustain  the  fundamental  law,  or  be  recalled ;  for  in  this 
latter  case  he  has  violated  his  oath  of  office.  In  other 
words,  so  far  as  the  judge  is  concerned,  he  is  supposed 
to  be  responsive  to  the  popular  will,  whether  the  legis- 
lature interprets  it  correctly  or  not.  If  he  guesses 
the  popular  pulse  correctly  his  position  is  safe.  If  he 
mistakes  the  popular  pulse  he  is  likely  to  lose  his 
position.  No  doubt  the  newspapers,  interested  parties, 
mass  meetings,  and  public  clamor  will  help  him  to 
his  guess;  but  we  have  often  found  out  that  the  most 
votes  are  not  always  on  the  side  of  the  most  noise. 
It  would  seem  that  such  a  condition  of  affairs  could 
easily  lead  to  anarchy.  In  a  recent  article  by  Mr. 

49 


Justice  Lurton,  he  has  very  aptly  dealt  with  this  phase 
of  the  subject  in  this  language : 

"Whether  the  general  interests  will  be  best  subserved  by  a 
disregard  of  constitutional  barriers  or  by  obedience  to  the  slow 
processes  for  constitutional  amendments  is  a  question  which  goes 
to  the  very  fundamentals  of  our  institutions.  To  override  con- 
stitutional methods  spells  revolution  and  tends  to  the  destruc- 
tion of  a  government  of  law.  To  yield  to  the  clamor  of  a 
temporary  majority  upon  the  pretense  that  otherwise  popular 
government  is  prevented  is  but  to  overthrow  the  barriers  which 
the  people  themselves,  under  great  deliberation,  have  erected 
against  their  own  impulsive  majorities.  These  impediments  to 
hasty  action  are  intended  not  only  as  bulwarks  for  the  defense 
of  minorities,  but  as  defenses  against  hotfooted  action  by 
temporary  majorities  in  supposed  exigencies." 

The  Logic  of  the  Recall  Would  Require  Cases  to  be  De- 
cided by  Popular  Vote. 

It  is  not  uncommon  to  hear  the  advocates  of  the 
recall  inveigh  against  the  courts,  that  they  legislate 
when  they  interpret  and  construe  the  laws ;  and  in  the 
next  breath  insist  that  the  courts  must  be  responsive 
to  the  popular  will  and  construe  the  laws  as  the  people 
wish  them  to  be  construed. 

Hon.  Sydney  Anderson  of  Minnesota,  in  a  recent 
speech  in  congress  on  the  recall  in  Arizona  said : 

"While  they  act  through  the  medium  of  the  court,  the  making 
or  unmaking  of  law  is  nevertheless  a  legislative  function,  and 
should  be  just  as  much  subject  to  final  control  by  the  people  as 
though  they  legislated  through  the  medium  of  the  legislature." 

It  is  undoubtedly  true  that  the  interpretation  of  a 
law  is,  in  a  sense,  the  making  of  law.  If  the  law  needs 
interpretation  to  fix  its  meaning  this  may  involve  a 
kind  of  quasi  legislation;  and  it  is  true  that  judicial 
decisions  cumulatively  tend  to  become  additions  to 
the  law,  although  claiming  only  to  interpret  it.  The 
legislature,  however,  can  change  these,  as  any  other 
law,  if  they  do  not  meet  popular  approval.  But  if 

50 


the  meaning  of  a  law  is  doubtful,  somebody  must  have 
authority  to  finally  determine  its  meaning;  and  un- 
fortunately this  predicament  arises  very  often. 
As  Judge  Baldwin  says : 

"Few  statements  of  any  rule  or  principle  can  be  written  out 
in  such  a  way  as  to  convey  exactly  the  same  expression  to  every 
mind.  Thought  is  subtler  than  its  expression.  The  meaning  of 
written  laws  will  therefore  often  be  questioned."  (Baldwin 
American  Judiciary,  p.  81.) 

At  a  recent  meeting  of  the  Commonwealth  Club,  in 
a  debate  on  this  subject,  the  question  of  the  "interpre- 
tation" of  one  of  the  proposed  constitutional  amend- 
ments, relating  to  the  railroad  commission,  was 
broached.  There  were  several  Senators  and  Assembly- 
men present,  who  were  responsible  for  the  amendment. 
Each  one  who  expressed  himself  had  a  different  view 
as  to  its  meaning  and  effect. 

How  would  the  judge  interpret  the  popular  will  in 
construing  such  a  law ;  provided  there  is  a  popular  will 
on  the  subject?  How  is  the  judge  to  proceed  to  get 
at  the  popular  will?  If  he  decides  against  the  popu- 
lar will,  then  there  may  be  an  election,  and  he  may 
be  recalled.  It  would  seem  only  fair  to  the  judge  to 
call  the  election,  in  advance,  so  that  he  may  be  properly 
advised  of  the  popular  will.  If  he  has  to  rely  upon 
the  newspapers  and  other  organs  of  popular  opinion, 
they  may  intentionally,  and  perhaps  for  hire,  mislead 
him. 

But  if  the  law  is  ambiguous  and  uncertain  and  in 
need  of  interpretation,  the  judge  who  interprets  it 
according  to  the  popular  will,  legislates  just  as  much 
as  if  he  interprets  it  according  to  the  rules  of  gram- 
mar and  logic  and  according  to  the  judicial  precedents. 
So,  it  is  not  the  judicial  legislation  which  these  reform- 
ers object  to  so  long  as  the  interpretation  is  in  accord- 

51 


ance  with  the  popular  will.  But  as  there  is  so  much 
difficulty  in  getting  at  the  popular  will,  except  by 
an  election,  it  would  seem  that  the  only  logical  and 
safe  way  to  determine  questions  of  interpretation  is 
by  an  election  and  not  by  the  agency  of  judges.  At 
the  meeting  of  the  Commonwealth  Club  just  referred 
to,  when  the  diversity  of  opinion  as  to  the  meaning  of 
the  constitutional  amendments  became  apparent,  Sen- 
ator Gates,  the  champion  of  the  recall,  in  the  legis- 
lature, said: 

"This  is  just  what  the  recall  is  for.  It  will  decide  questions 
like  this  for  you.  Do  you  want  to  let  the  lawyers  decide  all 
these  matters  for  you,  or  do  you  want  to  decide  them  your- 
selves?" 

Of  course,  when  this  stage  is  reached,  the  usefulness 
of  the  courts  will  be  very  small  and  will  be  practically 
confined  to  clerical  duties.  Besides,  as  interpretation  is 
legislation,  it  will  be  in  line  with  the  popular  reforms 
to  let  the  people  do  the  legislation ;  because  if  the  judge 
is  to  legislate,  even  according  to  the  popular  will,  then 
we  still  have  the  odious  thing  called  "a  government 
by  judges" — which  is  itself  a  kind  of  representative 
government.  Why  not  have  direct  legislation  here 
also  ?* 

There  is  no  doubt  that  the  majority  of  the  people 
are  honest,  and  if  they  were  fully  advised  of  the  facts, 
and  had  the  requisite  time  to  consider  them,  they  could 
under  normal  conditions,  where  their  sympathies  or 
passions  were  not  aroused,  give  a  just  decision  on 
questions  of  fact.  But  they  are  too  busy  with  their 
own  private  affairs,  in  making  a  living  for  themselves 

Note. — That  government  by  mass  meeting  is  not  a  new  in- 
vention of  the  twentieth  century,  see  Aristotle's  remarkable 
description  of  that  class  of  lawless  democracy,  as  it  existed 
in  his  day.  (Politics,  Book  TV,  Chap.  TV.)  The  likeness  to 
the  ideal  of  some  of  our  local  reformers  is  striking,  not  to 
say  startling.  See  Appendix  No.  2. 

52 


and  those  dependent  on  them,  to  take  the  time  to  suf- 
ficiently investigate  and  ascertain  the  facts.  They 
would  too  often  get  the  facts  from  yellow  journalists, 
muckrakers  and  demagogues,  who  would  often  be  in- 
terested in  misinforming  them,  telling  them  things 
which  might  have  the  semblance  of  truth,  but  which 
would  really  be  intended  to  prejudice  their  minds 
and  inflame  their  passions.  It  is  upon  false  premises 
built  up  in  this  way  that  a  majority  would  be  very 
likely  to  form  their  judgments.  Turn  back,  only  a 
few  years,  and  recall  how  this  community  was  divided 
on  the  questions  involved  in  the  graft  prosecutions, 
where  the  several  factions  were  busily  engaged  in 
making  popular  opinion  for  and  against  each  other. 
Such  things  have  never  failed  where  the  interests 
involved  were  powerful  enough  to  expend  the  neces- 
sary efforts  to  produce  the  desired  results. 

But  when  it  comes  to  deciding  questions  of  law, 
how  can  the  people  be  expected  to  pass  intelligently 
upon  the  correctness  or  incorrectness  of  a  decision  of 
a  judge  who  is  supposed  to  have  made  a  life  study  of 
the  subject,  and  to  have  reached  a  conclusion  after 
full  argument  for  the  adversary  parties,  represented 
by  experts  learned  in  the  law,  and  to  have  decided  ac- 
cording to  his  oath?  As  previously  insisted  upon,  it 
is  no  disparagement  of  the  intelligence  of  the  people 
to  say  that  they  are  not  qualified  to  pass  upon  com- 
plicated questions  in  government  or  law,  upon  some  of 
which  even  those  who  have  made  them  a  life  study, 
may  honestly  disagree.  Even  when  the  principles  are 
well  settled  it  is  often  difficult  to  apply  them  to  the 
facts  of  the  case,  because  of  the  infinite  variety  and 
complexity  of  human  actions  and  affairs  and  the  vary- 
ing force  with  which  different  acts  and  shades  of 
action  affect  different  minds.  No  assembly,  even  of 

53 


educated  men,  could  pass  intelligently  upon  many 
measures  or  principles  which  are  outside  their  own 
special  spheres  of  information.  How,  then,  can  the 
people  at  large,  whose  time  is  occupied  in  strenuously 
following  their  own  vocations,  pass  upon  these  dis- 
puted points.  To  doubt  their  ability  to  do  this  may 
be  a  lack  of  confidence  in  their  ability  or  intelligence 
in  certain  respects;  but  it  is  certainly  no  disparage- 
ment of  their  general  ability  or  intelligence.  To  ask 
the  people,  busy  with  their  own  affairs,  to  do  such 
things,  is  absurd,  as  every  one  should  know,  and  is 
wrong  in  principle.  Matters  requiring  special  knowl- 
edge should  be  left  to  specialists.  Our  government 
and  institutions  would  break  down  if  submitted  to  such 
an  absurd  strain.  Our  modern  life  is  becoming  so 
complicated  that,  while  the  democratic  form  must  be 
retained,  the  strain  on  the  people  must  be  made  lighter 
instead  of  heavier.  The  average  man  can  no  longer 
give  the  time  necessary  to  study  the  whole  of  the  com- 
plex and  diversified  conditions  which  affect  his  public 
duties.  Instead  of  the  people  taking  a  larger  share  in 
their  own  government,  they  will,  in  certain  respects, 
be  compelled,  more  and  more,  on  account  of  the  vast- 
ness  of  the  task,  to  take  a  relatively  smaller  share  if 
they  desire  efficient  government.  They  will  have  to 
delegate  to  specialists  the  investigation  and  solution 
for  them,  of  the  tremendous  questions  that  are  con- 
stantly pressing  for  solution ;  just  as  in  their  private 
business,  if  they  wish  the  best  results  they  unhes- 
itatingly confide  matters  requiring  special  knowledge 
to  those  best  qualified  to  produce  the  best  results. 
This  idea  was  ably  expounded  over  a  year  ago  in  an 
address  which  President  Hadley,  of  Yale,  delivered 
at  the  University  of  California.  He  pointed  out  the 
necessity  in  a  democratic  government,  on  a  large  scale, 

54 


if  it  is  to  endure,  to  utilize  trained  specialists  to  work 
out,  for  the  people,  the  great  problems  with  which 
they  are  confronted  under  modern  conditions;  and 
which  the  people  at  large  have  not  the  training  nor  the 
time  to  work  out  for  themselves.  As  an  example  of  the 
capacity  of  our  constitutional  democracy  to  adapt 
itself  to  these  new  conditions,  he  instanced  the  creation 
and  work  of  the  Interstate  Commerce  Commission. 
Since  that  time,  acting  along  the  same  line,  we  have 
established  a  Court  of  Commerce,  and  a  Tariff  Com- 
mission composed  of  specialists,  whose  business  it  will 
be  to  thoroughly  investigate  the  special  subjects  com- 
mitted to  them,  and  who  will  do  for  the  people  what, 
admittedly,  they  are  and  must  be  incapable  of  prop- 
erly doing  for  themselves.  President  Hadley  divides 
the  problems  of  democracy  into  problems  of  social 
order  and  problems  of  business  administration  (Uni- 
versity of  Cal.  Chronicle,  Vol.  XII,  p.  208).  Ques- 
tions of  social  order  like  slavery,  immigration,  suffrage, 
states'  rights,  prohibition  and  divorce,  the  people  must 
work  out  for  themselves ;  but  questions  on  which  only 
a  small  part  of  the  voters  can  possibly  inform  them- 
selves, must  be  left  to  experts.  This  is  the  logical  way 
to  get  the  best  results. 

The  doctrine  that  the  will  of  the  majority  must 
be  right  simply  because  it  is  the  will  of  the  majority, 
is  not  only  an  obvious  absurdity,  but  it  is  dangerous 
to  democratic  government  itself.  It  logically  leads  to 
the  wiping  out  of  all  restraints  and  constitutions. 
Under  such  a  doctrine  a  constitution  would  be  a  mere 
sham. 


55 


What  Good  can  the  Recall  of  the  Judiciary  Effect? 

It  must  be  admitted  that  we  should  have  the  best 
judges  possible ;  but  there  will  be  a  difference  of  opin- 
ion as  to  how  that  result  may  be  attained.  Of  course 
the  system  of  selection  which  will  secure  the  best  re- 
sults is  the  best.  The  two  systems  which  have  hereto- 
fore seemed  to  meet  with  the  approval  of  thoughtful 
men  are  first,  appointment  by  the  executive  and  legis- 
lature with  a  tenure  of  good  behavior;  and  second, 
popular  election  with  a  reasonably  long  term. 

Will  the  recall  produce  better  judges?  Will  it  be 
conducive  to  promote  integrity,  independence  or 
courage,  which,  with  ability  and  learning,  constitute 
the  prime  characteristics  of  a  good  judge?  When  a 
judge  goes  on  the  bench  he  bids  farewell  to  his 
practice,  the  means  of  his  livelihood.  He  is  generally 
a  man  of  moderate  means  to  whom  his  salary  is  essen- 
tial for  his  livelihood.  If  he  is  subject  to  recall,  and 
would  be  secure  in  his  position,  he  must  not  only  avoid 
the  danger  of  losing  it,  but  his  care  will  naturally  be 
not  to  invite  a  recall  election  which,  with  its  other 
dangers  and  annoyances,  may  entail  an  expense  which 
he  can  ill  afford.  Unless  a  judge  is  of  the  type  of 
Brutus,  will  not  the  temptation  be  very  strong  to  con- 
sider the  influences  which  may  be  behind  the  parties 
litigant  as  well  as  the  merits  of  their  causes?  In  fact 
is  that  not  the  avowed  purpose  of  the  recall — to  make 
the  judges  responsive  to  the  popular  will?  Is  the 
judge  more  likely,  in  such  case,  to  go,  for  his  law,  to 
the  constitution  and  statutes  and  to  the  decisions 
construing  them — where  the  wise  and  learned  and 
honest  judge  is  supposed  to  go — or  will  he  be  more 
likely  to  consult  the  pages  of  the  sensational  but 
powerful  newspapers,  the  resolves  of  mass  meetings, 

56 


or  labor  councils,  and  the  harangues  of  demagogues 
or  the  leaders  of  powerful  organizations,  controlling 
large  numbers  of  votes? 

If  the  judge  is  a  timid  man,  will  not  his  usefulness 
be  destroyed?  Will  men  of  high  character  accept  a 
judicial  office  under  such  circumstances?  Will  any 
man  accept  it  unless  the  salary  is  more  of  an  object 
to  him  than  his  reputation,  or  unless  induced  by 
sinister  motives  ?  One  thing  is  pretty  certain,  and  that 
is,  that  the  judge  who  should  be  recalled  will  scarcely 
ever  be  recalled,  unless  he  happens  to  make  a  false 
guess  at  what  is  the  popular  will. 

Ask  yourself  how  you  would  like  to  have  your  cause, 
which  you  knew  to  be  just,  tried  before  such  a  tribunal, 
especially  if  you  were  resisting  the  ruthless  aggression 
of  some  labor  union;  if  you  were  resisting  an  unjust 
claim  for  damages  of  some  employee  injured  in  your 
service;  if  you  were  foreclosing  an  honest  mortgage 
against  the  widow  of  your  debtor.  A  case  like  this 
last  recently  occurred  in  Red  Bluff,  where  a  creditor 
sought  to  foreclose  a  claim  of  nearly  four  hundred 
thousand  dollars  which  had  been  loaned  to  the  widow's 
husband.  During  the  sessions  of  the  court,  the  court- 
room was  packed  with  the  townspeople,  the  room  could 
not  accommodate  the  crowds.  Every  bit  of  evidence 
in  the  widow's  favor  was  hailed  with  applause  which 
the  warnings  of  the  court  could  not  suppress.  During 
the  trial  the  appearance  of  the  town  was  like  a  holi- 
day. How  would  this  plaintiff  have  felt  or  fared  if 
the  judge  was  a  timid  man  and  subject  to  recall ! 
Suppose  the  case  of  a  Chinaman  or  a  Japanese  or  a 
member  of  some  other  unpopular  or  despised  race,  who 
has  been  beaten  and  abused,  or  whose  property  has  been 
destroyed  or  injured  by  a  mob.  What  will  be  his 
chances  for  justice,  or  what  will  be  the  chances  of  meet- 

57 


ing  out  justice  to  his  oppressors,  before  a  judge  who 
is  subject  to  recall?  What  would  be  the  chance  of 
meeting  out  justice  to  a  mob  which  might  burn  some 
poor  and  perhaps  innocent  negro  at  the  stake  ?  What 
would  be  the  chance  of  a  judge  performing  his  duty  in 
a  county  like  Adams  County,  Ohio,  where  the  majority 
of  the  electors  admitted  having  sold  their  votes? 

Under  the  Recall  Amendment,  a  Judge  May  be  Recalled 
by  a  Minority  of  the  Voters. 

But  if  a  judge  is  recalled,  he  may  be  recalled  by  a 
minority  and  not  by  a  majority.  A  well  organized 
minority  may  easily  accomplish  a  judge's  undoing. 
Suppose  the  registered  voters  of  San  Francisco  were 
70,000,  and  that  at  the  last  election  of  judges  only 
40,000  voted.  A  petition  signed  by  10,000  voters  would 
be  sufficient  to  bring  about  a  recall  election.  If,  at 
the  recall  election,  less  than  20,000  electors  voted,  the 
judge.could  be  recalled  by  say  10,000  voters.  A  strik- 
ing illustration  of  this  is  afforded  in  the  case  of  the 
Arizona  Constitution,  which  has  caused  so  much  stir 
in  the  Nation  at  large,  but  which  apparently  did  not 
create  such  a  great  stir  in  Arizona.  When  it  was  sub- 
mitted to  popular  vote  less  than  27  per  cent  of  the 
voters  and  less  than  6  per  cent  of  the  population  went 
to  the  polls.  It  is  decidedly  a  minority  constitution. 

But  suppose  the  recall  will  enable  us,  occasionally, 
to  get  rid  of  a  dishonest  judge  more  expeditiously  than 
by  the  legislative  impeachment  or  legislative  removal 
now  provided  for !  Suc-h  a  condition  is  only  a  tempo- 
rary and  a  local  condition ;  for  there  can  be  no  doubt 
that  the  very  great  majority  of  our  judges  are  honest 
and  competent.  What  will  be  the  result?  Must  we, 
for  the  sake  of  being  able  to  correct  such  an  occasional 
mistake,  weaken  and  destroy  the  intellectual  honesty, 

58 


the  courage  and  the  independence  of  the  whole  body 
of  our  judges?  Is  is  not  better  that  such  a  single 
judge,  (if  it  is  impracticable  to  impeach  him)  be  al- 
lowed to  serve  out  his  term,  living  under  the  suspicion 
of  his  fellow  citizens,  than  to  introduce  a  system  whose 
tendency  must  necessarily  be  to  demoralize  the  whole 
bench?  Is  not  this  scheme  very  much  like  the  case 
of  the  farmer  who  burned  his  barn  in  order  to  get  rid 
of  the  rats? 

It  is  objected  that  judges  have  been  subservient  to 
bosses  and  powerful  interests  to  whom  they  have  owed 
their  nomination  and  election;  and  that  the  people 
must  have  the  opportunity  to  correct  such  abuses? 
But  in  answer  to  this,  it  may  be  said  that  the  new 
primary  election  law  has  already  placed  the  correction 
in  the  peoples'  hands.  Under  this  law  the  people 
themselves  will  be  able  to  nominate  their  judges;  and 
hereafter  judges  are  to  be  voted  for,  not  as  the 
nominees  of  any  particular  party,  but  solely  upon  their 
individual  merits  and  popularity. 

There  are  many  other  phases  of  this  matter  which 
could  be  dwelt  upon;  but  the  length  of  this  paper 
forbids ;  and  for  the  same  reason  I  am  precluded  from 
giving  a  large  number  of  illustrative  examples  of  the 
inconsiderate  and  ruthless  manner  in  which  honest 
judges  have  been  punished  and  broken  by  angry  con- 
stituents for  doing  their  plain  and  honest  duty. 


.59 


CONCLUSION 

It  seems  clear  that  any  one  who  has  at  heart  the 
preservation  of  true  and  stable  democratic  govern- 
ment, where  the  citizen  will  be  secure  in  the  enjoyment 
of  his  liberty  and  the  property  which  he  has  accum- 
ulated by  toil  and  self-denial,  should  be  opposed  to  the 
recall  of  judges. 

If  there  ever  was  an  institution  with  a  more  obvious 
tendency  to  bring  democracy  into  disrepute,  it  is  diffi- 
cult to  imagine  what  it  can  be.  The  great  success  of 
democratic  government  in  this  country, — pre-eminent 
among  the  popular  governments  of  history — and  the 
reason  why  our  people  have  been  satisfied  with  it,  has 
undoubtedly  been  due  to  the  fact  that  we  have  been 
living  under  just  and  reasonable  constitutional  re- 
straints. Under  such  just  and  reasonable  restraints, 
popular  government  has  prospered  and  made  a  record 
which  is  illustrious  when  compared  with  the  best  gov- 
ernments of  any  other  form ;  and  it  has  been  an  in- 
spiration to  peoples  of  the  world.  But  the  way  to 
prepare  for  the  overthrow  of  popular  government  and 
for  reaction,  and  possibly  the  advent  of  the  "man  on 
horseback,"  is  to  open  wide  the  door  for  the  anarchy 
and  disorder  which  may  come  in  time  of  crisis,  from 
an  unrestrained  democracy. 

Unrestrained  democracy  is  what  the  recall  of  judges 
logically  means;  for  with  the  recall  how  much  reliance 
can  be  placed  on  constitutional  guarantees? 

I  will  therefore  end  with  this  suggestion : 

Why  not  give  the  new  system  which  we  have  just 
inaugurated  in  this  State,  namely,  the  direct  primary 
nomination  and  non-partisan  election  of  judges,  a  fair 
trial  before  embarking  on  a  new,  untried  and  appar- 

60 


ently  dangerous  experiment  ?  There  is  no  telling  what 
injury  may  come  from  such  a  radical  step.  It  may 
unsettle  the  very  foundations  of  society.  It  certainly 
will  not  make  our  State  an  inviting  field  for  the  invest- 
ment of  new  capital,  until  the  effects  of  the  new  system 
can  be  fairly  determined.  As  Oregon  and  Arizona 
seem  to  be  bent  on  trying  the  experiment,  those  who 
favor  the  recall  of  judges  ought  to  be  glad  to  wait 
and  see  the  effects  of  the  experiment  in  those  com- 
munities; when,  after  due  observation,  if  it  is  found 
to  work  evil  we  may  avoid  it;  and  if  it  is  found  to 
work  good  we  can  adopt  it,  with  all  the  advantages 
of  an  experience  which  will  cost  us  nothing.  Why  not 
let  Oregon  and  Arizona  try  the  experiment  for  a 
reasonable  time  before  we  act;  and  why  not  watch 
the  workings  of  this  innovation  in  those  communities, 
so  that  we  may  profit  by  their  experience,  without 
the  risk  of  paying  the  penalty  ourselves,  if  the  ex- 
periment should  prove  to  be  an  unwise  and  costly  one? 

APPENDIX  NO.  1 

"I  undertake  to  say  that  the  Constitution  of  Mis- 
sissippi embodied  the  popular  suffrage  idea,  in  connec- 
tion with  judicial  elections,  earlier  than  was  done  else- 
where since  the  adoption  of  the  Constitution  of  the 
United  States.  I  was  induced  to  propose  it  in  the 
manner  mentioned  in  consequence  of  a  then  recent 
perusal  of  Mr.  Jefferson's  writings,  in  which  this  mode 
of  election  is  so  highly  recommended,  especially  in  the 
letter  already  named,  addressed  by  him  to  a  Mr. 
Kercheval.  There  is  scarcely  an  instance  of  a  more 
rapid  diffusion  of  any  political  notion  whatever  so 
directly  in  opposition  to  established  public  scnliincnl 
than  now  occurred  all  over  the  Union.  T  take  no  par- 
ticular credit  to  myself  for  first  suggesting  this  idea 

61 


in  Mississippi ;  and  it  would  be  indeed  very  ridiculous 
for  me  to  do  so,  for  I  hold  that  experience  has  plainly 
shown  this  change  in  the  mode  of  election  to  have  been 
a  great  and  most  deplorable  error,  since  for  many 
years  past  it  has,  as  I  think,  been  found  altogether 
impossible  to  keep  politics  out  of  the  judicial  elections ; 
and  hence  a  great  and  constantly  increasing  deteriora- 
tion of  the  judicial  department  of  our  system  has  been 
observable."  (Henry  S.  Foote,  Casket  of  Reminis- 
cences, p.  348.) 

APPENDIX  NO.  2 

"Another  kind  of  democracy  is  where,  other  things 
being  the  same,  the  multitude,  and  not  the  law,  bears 
sway.  This  comes  to  pass  when,  instead  of  the  law, 
the  mere  resolves  of  the  popular  assembly  are 
sovereign ;  and  this  is  the  work  of  the  demagogues ; 
for  popular  governments,  in  which  the  constitution 
and  laws  are  supreme,  afford  no  place  for  demagogues, 
but  the  best  citizens  are  there  in  authority.  Where, 
however,  the  laws  are  not  sovereign,  demagogues 
spring  up.  In  such  a  government  the  people  are  a 
sort  of  many  headed  monarch ;  for  the  many  rule  not 
as  each,  but  as  all.  Whether  Homer  had  in  mind  this 
kind  of  government,  when  he  censures  a  plurality  of 
rulers;  or  whether  he  meant  that  in  which  many 
individuals  bear  sway,  is  not  clear.  Now,  such  a 
people  being  in  truth  a  monarch,  will,  of  course,  play 
the  king;  and  inasmuch  as  it  is  controlled  by  no  law, 
readily  becomes  despotic.  Hence,  flatterers  are  in 
honor.  A  democracy  of  this  description  bears  the 
same  analogy  to  a  popular  government,  based  upon 
the  supremacy  of  law,  that  a  tyranny  bears  to  the 
legitimate  forms  of  monarchy.  In  both  the  animus 
or  moral  character,  is  the  same;  both  exercise  despo- 

62 


tism  over  the  better  class  of  citizens;  and  the  resolves 
of  mass  meetings  are  in  the  one,  what  edicts  and 
decrees  are  in  the  other.  The  demagogue  too,  and  the 
flatterer  of  the  tyrant,  bear  the  closest  analogy;  they 
are,  indeed,  at  heart,  the  same;  and  these  have  the 
principal  power;  each  in  their  respective  forms  of 
government,  court  favorites  with  the  absolute  monarch, 
and  demagogues  with  a  people  such  as  I  have  de- 
scribed. The  demagogues  are,  in  fact,  the  guilty 
authors  of  this  degeneracy  of  popular  government,  by 
referring  everything  to  the  mere  pleasure  of  the 
people,  without  respect  to  law  or  right.  Thus  they 
aggrandize  themselves,  and  become  mighty;  by  ruling 
the  popular  opinion,  they  rule  the  state ;  for  the  mul- 
titude obeys  them !  //  they  wish  to  overthrow  an 
upright  magistrate,  they  accuse  him  not  before  the 
law,  but  before  the  people,  which,  they  say,  might  to 
be  his  judge;  the  people,  well  pleased,  entertain  the 
wrongful  pn^oposal,  and  thus  all  just  authority  is  dis- 
solved! He,  who  should  blame  us  for  calling  such  a 
democracy  a  state,  would,  certainly,  not  censure  with" 
out  good  reason;  for  where  laws  do  not  govern,  there 
is  no  state."  (Aristotle,  Politics,  Book  IV,  Chap.  IV.) 


63 


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